B.M. No.
2540 September 24,
2013
IN RE: PETITION TO SIGN IN THE ROLL
OF ATTORNEYS
MICHAEL A. MEDADO, Petitioner.
RESOLUTION
SERENO, CJ.:
We resolve the instant Petition to Sign in
the Roll of Attorneys filed by petitioner
Michael A. Medado (Medado).
Medado graduated from the University of
the Philippines with the degree of Bachelor
of Laws in 19791 and passed the same
year's bar examinations with a general
weighted average of 82.7.2
On 7 May 1980, he took the Attorney’s
Oath at the Philippine International
Convention Center (PICC) together with
the successful bar examinees.3 He was
scheduled to sign in the Roll of Attorneys
on 13 May 1980,4 but he failed to do so on
his scheduled date, allegedly because he
had misplaced the Notice to Sign the Roll
of Attorneys5 given by the Bar Office when
he went home to his province for a
vacation.6
Several years later, while rummaging
through his old college files, Medado found
the Notice to Sign the Roll of Attorneys. It
was then that he realized that he had not
signed in the roll, and that what he had
signed at the entrance of the PICC was
probably just an attendance record.7
during
By the time Medado found the notice, he
was already working. He stated that he was
mainly doing corporate and taxation work,
and that he was not actively involved in
litigation practice. Thus, he operated
"under the mistaken belief that since he
had already taken the oath, the signing of
the Roll of Attorneys was not as urgent, nor
as crucial to his status as a lawyer";8 and
"the matter of signing in the Roll of
Attorneys lost its urgency and compulsion,
and was subsequently forgotten."9
In 2005, when Medado attended
Mandatory Continuing Legal Education
(MCLE) seminars, he was required to
provide his roll number in order for his
MCLE compliances to be credited.10
Not having signed in the Roll of Attorneys,
he was unable to provide his roll number.
About seven years later, or on 6 February
2012, Medado filed the instant Petition,
praying that he be allowed to sign in the
Roll of Attorneys.11
The Office of the Bar Confidant (OBC)
conducted a clarificatory conference on the
matter on 21 September 201212 and
submitted a Report and Recommendation
to this Court on 4 February 2013.13 The
OBC recommended that the instant petition
be denied for petitioner’s gross negligence,
gross misconduct and utter lack of merit.14
It explained that, based on his answers
the clarificatory conference,
petitioner could offer no valid justification
for his negligence in signing in the Roll of
Attorneys.15
After a judicious review of the records, we
grant Medado’s prayer in the instant
petition, subject to the payment of a fine
and the imposition of a penalty equivalent
to suspension from the practice of law.
At the outset, we note that not allowing
Medado to sign in the Roll of Attorneys
would be akin to imposing upon him the
ultimate penalty of disbarment, a penalty
that we have reserved for the most serious
ethical transgressions of members of the
Bar.
In this case, the records do not show that
this action is warranted.
For one, petitioner demonstrated good faith
and good moral character when he finally
filed the instant Petition to Sign in the Roll
of Attorneys. We note that it was not a third
party who called this Court’s attention to
petitioner’s omission; rather, it was Medado
himself who acknowledged his own lapse,
albeit after the passage of more than 30
years. When asked by the Bar Confidant
why it took him this long to file the instant
petition, Medado very candidly replied:
Mahirap hong i-explain yan pero, yun bang
at the time, what can you say? Takot ka
kung anong mangyayari sa ‘yo, you don’t
know what’s gonna happen. At the same
Page | 1
time, it’s a combination of apprehension
and anxiety of what’s gonna happen. And,
finally it’s the right thing to do. I have to
come here … sign the roll and take the
oath as necessary.16
For another, petitioner has not been
subject to any action for disqualification
from the practice of law,17 which is more
than what we can say of other individuals
who were successfully admitted as
members of the Philippine Bar. For this
Court, this fact demonstrates that petitioner
strove to adhere to the strict requirements
of the ethics of the profession, and that he
has prima facie shown that he possesses
the character required to be a member of
the Philippine Bar.
Finally, Medado appears to have been a
competent and able legal practitioner,
having held various positions at the Laurel
Law Office,18 Petron, Petrophil
Corporation, the Philippine National Oil
Company, and the Energy Development
Corporation.19
All these demonstrate Medado’s worth to
become a full-fledged member of the
Philippine Bar.1âwphi1 While the practice
of law is not a right but a privilege,20 this
Court will not unwarrantedly withhold this
privilege from individuals who have shown
mental fitness and moral fiber to withstand
the rigors of the profession.
That said, however, we cannot fully
exculpate petitioner Medado from all
liability for his years of inaction.
Petitioner has been engaged in the
practice of law since 1980, a period
spanning more than 30 years, without
having signed in the Roll of Attorneys.21
He justifies this behavior by characterizing
his acts as "neither willful nor intentional
but based on a mistaken belief and an
honest error of judgment."22
We disagree.
While an honest mistake of fact could be
used to excuse a person from the legal
consequences of his acts23 as it negates
malice or evil motive,24 a mistake of law
cannot be utilized as a lawful justification,
because everyone is presumed to know the
law and its consequences.25 Ignorantia
factiexcusat; ignorantia legis neminem
excusat.
Applying these principles to the case at
bar, Medado may have at first operated
under an honest mistake of fact when he
thought that what he had signed at the
PICC entrance before the oath-taking was
already the Roll of Attorneys. However, the
moment he realized that what he had
signed was merely an attendance record,
he could no longer claim an honest mistake
of fact as a valid justification. At that point,
Medado should have known that he was
not a full-fledged member of the Philippine
Bar because of his failure to sign in the Roll
of Attorneys, as it was the act of signing
therein that would have made him so.26
When, in spite of this knowledge, he chose
to continue practicing law without taking the
necessary steps to complete all the
requirements for admission to the Bar, he
willfully engaged in the unauthorized
practice of law.
Under the Rules of Court, the unauthorized
practice of law by one’s assuming to be an
attorney or officer of the court, and acting
as such without authority, may constitute
indirect contempt of court,27 which is
punishable by fine or imprisonment or
both.28 Such a finding, however, is in the
nature of criminal contempt29 and must be
reached after the filing of charges and the
conduct of hearings.30 In this case, while it
appears quite clearly that petitioner
committed indirect contempt of court by
knowingly engaging in unauthorized
practice of law, we refrain from making any
finding of liability for indirect contempt, as
no formal charge pertaining thereto has
been filed against him.
Knowingly engaging in unauthorized
practice of law likewise transgresses
Canon 9 of 'the Code of Professional
Responsibility, which provides:
CANON 9 -A lawyer shall not, directly or
indirectly, assist in the unauthorized
practice of law.
Page | 2
While a reading of Canon 9 appears to
merely prohibit lawyers from assisting in
the unauthorized practice of law, the
unauthorized practice of law by the lawyer
himself is subsumed under this provision,
because at the heart of Canon 9 is the
lawyer's duty to prevent the unauthorized
practice of law. This duty likewise applies
to law students and Bar candidates. As
aspiring members of the Bar, they are
bound to comport themselves in
accordance with the ethical standards of
the legal profession.
Turning now to the applicable penalty,
previous violations of Canon 9have
warranted the penalty of suspension from
the practice of law.31 As Medado is not yet
a full-fledged lawyer, we cannot suspend
him from the practice of law. However, we
see it fit to impose upon him a penalty akin
to suspension by allowing him to sign in the
Roll of Attorneys one (1) year after receipt
of this Resolution. For his transgression of
the prohibition against the unauthorized
practice of law, we likewise see it fit to fine
him in the amount of ₱32,000. During the
one year period, petitioner is warned that
he is not allowed to engage in the practice
of law, and is sternly warned that doing any
act that constitutes practice of law before
he has signed in the Roll of Attorneys will
be dealt with severely by this Court.
WHEREFORE, the instant Petition to Sign
in the Roll of Attorneys is hereby
GRANTED. Petitioner Michael A. Medado
is ALLOWED to sign in the Roll of
Attorneys ONE (1) YEAR after receipt of
this Resolution. Petitioner is likewise
ORDERED to pay a FINE of ₱32,000 for
his unauthorized practice of law. During the
one year period, petitioner is NOT
ALLOWED to practice law, and is
STERNLY WARNED that doing any act
that constitutes practice of law before he
has signed in the Roll of Attorneys will be
dealt will be severely by this Court.
Let a copy of this Resolution be furnished
the Office of the Bar Confidant, the
Integrated Bar of the Philippines, and the
Office of the Court Administrator for
circulation to all courts in the country.
SO ORDERED.
B.M. No. 1678 December 17, 2007
PETITION FOR LEAVE TO RESUME
PRACTICE OF LAW,
BENJAMIN M. DACANAY, petitioner.
RESOLUTION
CORONA, J.:
This bar matter concerns the petition of
petitioner Benjamin M. Dacanay for leave
to resume the practice of law.
Petitioner was admitted to the Philippine
bar in March 1960. He practiced law until
he migrated to Canada in December 1998
to seek medical attention for his ailments.
He subsequently applied for Canadian
citizenship to avail of Canada’s free
medical aid program. His application was
approved and he became a Canadian
citizen in May 2004.
On July 14, 2006, pursuant to Republic Act
(RA) 9225 (Citizenship Retention and Re-
Acquisition Act of 2003), petitioner
reacquired his Philippine citizenship.1 On
that day, he took his oath of allegiance as a
Filipino citizen before the Philippine
Consulate General in Toronto, Canada.
Thereafter, he returned to the Philippines
and now intends to resume his law
practice. There is a question, however,
whether petitioner Benjamin M. Dacanay
lost his membership in the Philippine bar
when he gave up his Philippine citizenship
in May 2004. Thus, this petition.
In a report dated October 16, 2007, the
Office of the Bar Confidant cites Section 2,
Rule 138 (Attorneys and Admission to Bar)
of the Rules of Court:
SECTION 2. Requirements for all
applicants for admission to the bar. – Every
applicant for admission as a member of the
bar must be a citizen of the Philippines, at
least twenty-one years of age, of good
moral character, and a resident of the
Philippines; and must produce before the
Supreme Court satisfactory evidence of
good moral character, and that no charges
against him, involving moral turpitude, have
been filed or are pending in any court in the
Philippines.
Page | 3
Applying the provision, the Office of the Bar
Confidant opines that, by virtue of his
reacquisition of Philippine citizenship, in
2006, petitioner has again met all the
qualifications and has none of the
disqualifications for membership in the bar.
It recommends that he be allowed to
resume the practice of law in the
Philippines, conditioned on his retaking the
lawyer’s oath to remind him of his duties
and responsibilities as a member of the
Philippine bar.
We approve the recommendation of the
Office of the Bar Confidant with certain
modifications.
The practice of law is a privilege burdened
with conditions.2 It is so delicately affected
with public interest that it is both a power
and a duty of the State (through this Court)
to control and regulate it in order to protect
and promote the public welfare.3
Adherence to rigid standards of mental
fitness, maintenance of the highest degree
of morality, faithful observance of the rules
of the legal profession, compliance with the
mandatory continuing legal education
requirement and payment of membership
fees to the Integrated Bar of the Philippines
(IBP) are the conditions required for
membership in good standing in the bar
and for enjoying the privilege to practice
law. Any breach by a lawyer of any of these
conditions makes him unworthy of the trust
and confidence which the courts and
clients repose in him for the continued
exercise of his professional privilege.4
Section 1, Rule 138 of the Rules of Court
provides:
SECTION 1. Who may practice law. – Any
person heretofore duly admitted as a
member of the bar, or thereafter admitted
as such in accordance with the provisions
of this Rule, and who is in good and regular
standing, is entitled to practice law.
Pursuant thereto, any person admitted as a
member of the Philippine bar in accordance
with the statutory requirements and who is
in good and regular standing is entitled to
practice law.
Admission to the bar requires certain
qualifications. The Rules of Court
mandates that an applicant for admission
to the bar be a citizen of the Philippines, at
least twenty-one years of age, of good
moral character and a resident of the
Philippines.5 He must also produce before
this Court satisfactory evidence of good
moral character and that no charges
against him, involving moral turpitude, have
been filed or are pending in any court in the
Philippines.6
Moreover, admission to the bar involves
various phases such as furnishing
satisfactory proof of educational, moral and
other qualifications;7 passing the bar
examinations;8 taking the lawyer’s oath9
and signing the roll of attorneys and
receiving from the clerk of court of this
Court a certificate of the license to
practice.10
The second requisite for the practice of law
― membership in good standing ― is a
continuing requirement. This means
continued membership and, concomitantly,
payment of annual membership dues in the
IBP;11 payment of the annual professional
tax;12 compliance with the mandatory
continuing legal education requirement;13
faithful observance of the rules and ethics
of the legal profession and being
continually subject to judicial disciplinary
control.14
Given the foregoing, may a lawyer who has
lost his Filipino citizenship still practice law
in the Philippines? No.
The Constitution provides that the practice
of all professions in the Philippines shall be
limited to Filipino citizens save in cases
prescribed by law.15 Since Filipino
citizenship is a requirement for admission
to the bar, loss thereof terminates
membership in the Philippine bar and,
consequently, the privilege to engage in
the practice of law. In other words, the loss
of Filipino citizenship ipso jure terminates
the privilege to practice law in the
Philippines. The practice of law is a
privilege denied to foreigners.16
Page | 4
The exception is when Filipino citizenship
is lost by reason of naturalization as a
citizen of another country but subsequently
reacquired pursuant to RA 9225. This is
because "all Philippine citizens who
become citizens of another country shall be
deemed not to have lost their Philippine
citizenship under the conditions of [RA
9225]."17 Therefore, a Filipino lawyer who
becomes a citizen of another country is
deemed never to have lost his Philippine
citizenship if he reacquires it in accordance
with RA 9225. Although he is also deemed
never to have terminated his membership
in the Philippine bar, no automatic right to
resume law practice accrues.
Under RA 9225, if a person intends to
practice the legal profession in the
Philippines and he reacquires his Filipino
citizenship pursuant to its provisions "(he)
shall apply with the proper authority for a
license or permit to engage in such
practice."18 Stated otherwise, before a
lawyer who reacquires Filipino citizenship
pursuant to RA 9225 can resume his law
practice, he must first secure from this
Court the authority to do so, conditioned
on:
(a) the updating and payment in full of the
annual membership dues in the IBP;
(b) the payment of professional tax;
(c) the completion of at least 36 credit
hours of mandatory continuing legal
education; this is specially significant to
refresh the applicant/petitioner’s knowledge
of Philippine laws and update him of legal
developments and
(d) the retaking of the lawyer’s oath which
will not only remind him of his duties and
responsibilities as a lawyer and as an
officer of the Court, but also renew his
pledge to maintain allegiance to the
Republic of the Philippines.
Compliance with these conditions will
restore his good standing as a member of
the Philippine bar.
WHEREFORE, the petition of Attorney
Benjamin M. Dacanay is hereby
GRANTED, subject to compliance with the
conditions stated above and submission of
proof of such compliance to the Bar
Confidant, after which he may retake his
oath as a member of the Philippine bar.
SO ORDERED.
B.M. No. 2112 July 24, 2012
IN RE: PETITION RE-ACQUIRE THE
PRIVILEGE TO PRACTICE LAW IN THE
PHILIPPINES, EPIFANIO B. MUNESES,
Petitioner,
RESOLUTION
REYES, J.:
On June 8, 2009, a petition was filed by
Epifanio B. Muneses (petitioner) with the
Office of the Bar Confidant (OBC) praying
that he be granted the privilege to practice
law in the Philippines.
The petitioner alleged that he became a
member of the Integrated Bar of the
Philippines (IBP) on March 21, 1966; that
he lost his privilege to practice law when he
became a citizen of the United States of
America (USA) on August 28, 1981; that on
September 15, 2006, he re-acquired his
Philippine citizenship pursuant to Republic
Act (R.A.) No. 9225 or the "Citizenship
Retention and Re-Acquisition Act of 2003"
by taking his oath of allegiance as a Filipino
citizen before the Philippine Consulate
General in Washington, D.C., USA; that he
intends to retire in the Philippines and if
granted, to resume the practice of law.
Attached to the petition were several
documents in support of his petition, albeit
mere photocopies thereof, to wit:
1. Oath of Allegiance dated September 15,
2006 before Consul General Domingo P.
Nolasco;
2. Petition for Re-Acquisition of Philippine
Citizenship of same date;
3. Order for Re-Acquisition of Philippine
Citizenship also of same date;
4. Letter dated March 13, 2008 evidencing
payment of membership dues with the IBP;
Page | 5

5. Attendance Forms from the Mandatory
Continuing Legal Education (MCLE).
In Bar Matter No. 1678, dated December
17, 2007, the Court was confronted with a
similar petition filed by Benjamin M.
Dacanay (Dacanay) who requested leave
to resume his practice of law after availing
the benefits of R.A. No. 9225. Dacanay
was admitted to the Philippine Bar in March
1960. In December 1998, he migrated to
Canada to seek medical attention for his
ailments and eventually became a
Canadian citizen in May 2004. On July 14,
2006, Dacanay re-acquired his Philippine
citizenship pursuant to R.A. No. 9225 after
taking his oath of allegiance before the
Philippine Consulate General in Toronto,
Canada. He returned to the Philippines and
intended to resume his practice of law.
The Court reiterates that Filipino citizenship
is a requirement for admission to the bar
and is, in fact, a continuing requirement for
the practice of law. The loss thereof means
termination of the petitioner’s membership
in the bar; ipso jure the privilege to engage
in the practice of law. Under R.A. No. 9225,
natural-born citizens who have lost their
Philippine citizenship by reason of their
naturalization as citizens of a foreign
country are deemed to have re-acquired
their Philippine citizenship upon taking the
oath of allegiance to the Republic.1 Thus, a
Filipino lawyer who becomes a citizen of
another country and later re-acquires his
Philippine citizenship under R.A. No. 9225,
remains to be a member of the Philippine
Bar. However, as stated in Dacanay, the
right to resume the practice of law is not
automatic.2 R.A. No. 9225 provides that a
person who intends to practice his
profession in the Philippines must apply
with the proper authority for a license or
permit to engage in such practice.3
It can not be overstressed that:
The practice of law is a privilege burdened
with conditions.1âwphi1 It is so delicately
affected with public interest that it is both
the power and duty of the State (through
this Court) to control and regulate it in order
to protect and promote the public welfare.
Adherence to rigid standards of mental
fitness, maintenance of the highest degree
of morality, faithful observance of the legal
profession, compliance with the mandatory
continuing legal education requirement and
payment of membership fees to the
Integrated Bar of the Philippines (IBP) are
the conditions required for membership in
good standing in the bar and for enjoying
the privilege to practice law. Any breach by
a lawyer of any of these conditions makes
him unworthy of the trust and confidence
which the courts and clients repose in him
for the continued exercise of his
professional privilege.4
Thus, in pursuance to the qualifications laid
down by the Court for the practice of law,
the OBC required the herein petitioner to
submit the original or certified true copies
of the following documents in relation to his
petition:
1. Petition for Re-Acquisition of Philippine
Citizenship;
2. Order (for Re-Acquisition of Philippine
citizenship);
3. Oath of Allegiance to the Republic of the
Philippines;
4. Identification Certificate (IC) issued by
the Bureau of Immigration;
5. Certificate of Good Standing issued by
the IBP;
6. Certification from the IBP indicating
updated payments of annual membership
dues;
7. Proof of payment of professional tax;
and
8. Certificate of compliance issued by the
MCLE Office.
In compliance thereof, the petitioner
submitted the following:
1. Petition for Re-Acquisition of Philippine
Citizenship;
Page | 6
2. Order (for Re-Acquisition of Philippine
citizenship);
3. Oath of Allegiance to the Republic of the
Philippines;
4. Certificate of Re-Acquisition/Retention of
Philippine Citizenship issued by the Bureau
of Immigration, in lieu of the IC;
5. Certification dated May 19, 2010 of the
IBP-Surigao City Chapter attesting to his
good moral character as well as his
updated payment of annual membership
dues;
6. Professional Tax Receipt (PTR) for the
year 2010;
7. Certificate of Compliance with the MCLE
for the 2nd compliance period; and
8. Certification dated December 5, 2008 of
Atty. Gloria Estenzo-Ramos, Coordinator,
UC-MCLE Program, University of Cebu,
College of Law attesting to his compliance
with the MCLE.
The OBC further required the petitioner to
update his compliance, particularly with the
MCLE. After all the requirements were
satisfactorily complied with and finding that
the petitioner has met all the qualifications
and none of the disqualifications for
membership in the bar, the OBC
recommended that the petitioner be
allowed to resume his practice of law.
Upon this favorable recommendation of the
OBC, the Court adopts the same and sees
no bar to the petitioner's resumption to the
practice of law in the Philippines.
WHEREFORE, the petition of Attorney
Epifanio B. Muneses is hereby GRANTED,
subject to the condition that he shall re-take
the Lawyer's Oath on a date to be set by
the Court and subject to the payment of
appropriate fees.
Furthermore, the Office of the Bar
Confidant is directed to draft the necessary
guidelines for the re-acquisition of the
privilege to resume the practice of law for
the guidance of the Bench and Bar.
SO ORDERED.
BAR MATTER No. 914 October 1,
1999
RE: APPLICATION FOR ADMISSION TO
THE PHILIPPINE BAR, vs. VICENTE D.
CHING, applicant.
RESOLUTION
KAPUNAN, J.:
Can a legitimate child born under the 1935
Constitution of a Filipino mother and an
alien father validly elect Philippine
citizenship fourteen (14) years after he has
reached the age of majority? This is the
question sought to be resolved in the
present case involving the application for
admission to the Philippine Bar of Vicente
D. Ching.
The facts of this case are as follows:
Vicente D. Ching, the legitimate son of the
spouses Tat Ching, a Chinese citizen, and
Prescila A. Dulay, a Filipino, was born in
Francia West, Tubao, La Union on 11 April
1964. Since his birth, Ching has resided in
the Philippines.
On 17 July 1998, Ching, after having
completed a Bachelor of Laws course at
the St. Louis University in Baguio City, filed
an application to take the 1998 Bar
Examinations. In a Resolution of this Court,
dated 1 September 1998, he was allowed
to take the Bar Examinations, subject to the
condition that he must submit to the Court
proof of his Philippine citizenship.
In compliance with the above resolution,
Ching submitted on 18 November 1998,
the following documents:
1. Certification, dated 9 June 1986,
issued by the Board of Accountancy of the
Professional Regulations Commission
showing that Ching is a certified public
accountant;
2. Voter Certification, dated 14 June
1997, issued by Elizabeth B. Cerezo,
Election Officer of the Commission on
Elections (COMELEC) in Tubao La Union
Page | 7
showing that Ching is a registered voter of
the said place; and
3. Certification, dated 12 October
1998, also issued by Elizabeth B. Cerezo,
showing that Ching was elected as a
member of the Sangguniang Bayan of
Tubao, La Union during the 12 May 1992
synchronized elections.
On 5 April 1999, the results of the 1998 Bar
Examinations were released and Ching
was one of the successful Bar examinees.
The oath-taking of the successful Bar
examinees was scheduled on 5 May 1999.
However, because of the questionable
status of Ching's citizenship, he was not
allowed to take his oath. Pursuant to the
resolution of this Court, dated 20 April
1999, he was required to submit further
proof of his citizenship. In the same
resolution, the Office of the Solicitor
General (OSG) was required to file a
comment on Ching's petition for admission
to the bar and on the documents
evidencing his Philippine citizenship.
The OSG filed its comment on 8 July 1999,
stating that Ching, being the "legitimate
child of a Chinese father and a Filipino
mother born under the 1935 Constitution
was a Chinese citizen and continued to be
so, unless upon reaching the age of
majority he elected Philippine citizenship" 1
in strict compliance with the provisions of
Commonwealth Act No. 625 entitled "An
Act Providing for the Manner in which the
Option to Elect Philippine Citizenship shall
be Declared by a Person Whose Mother is However, due to the peculiar
a Filipino Citizen." The OSG adds that circumstances surrounding Ching's case,
"(w)hat he acquired at best was only an the OSG recommends the relaxation of the
inchoate Philippine citizenship which he standing rule on the construction of the
could perfect by election upon reaching the phrase "reasonable period" and the
age of majority." 2 In this regard, the OSG allowance of Ching to elect Philippine
clarifies that "two (2) conditions must citizenship in accordance with C.A. No. 625
concur in order that the election of prior to taking his oath as a member of the
Philippine citizenship may be effective, Philippine Bar.
namely: (a) the mother of the person
making the election must be a citizen of the On 27 July 1999, Ching filed a
Philippines; and (b) said election must be Manifestation, attaching therewith his
made upon reaching the age of majority." 3 Affidavit of Election of Philippine
The OSG then explains the meaning of the Citizenship and his Oath of Allegiance,
phrase "upon reaching the age of majority:" both dated 15 July 1999. In his
Manifestation, Ching states:
The clause "upon reaching the age of
majority" has been construed to mean a 1. I have always considered myself as
reasonable time after reaching the age of a Filipino;
majority which had been interpreted by the
Secretary of Justice to be three (3) years 2. I was registered as a Filipino and
(VELAYO, supra at p. 51 citing Op., Sec. of consistently declared myself as one in my
Justice No. 70, s. 1940, Feb. 27, 1940). school records and other official
Said period may be extended under certain documents;
circumstances, as when a (sic) person 3. I am practicing a profession
concerned has always considered himself (Certified Public Accountant) reserved for
a Filipino (ibid., citing Op. Nos. 355 and Filipino citizens;
422, s. 1955; 3, 12, 46, 86 and 97, s.
1953). But in Cuenco, it was held that an 4. I participated in electoral
election done after over seven (7) years process[es] since the time I was eligible to
was not made within a reasonable time. vote;
In conclusion, the OSG points out that 5. I had served the people of Tubao,
Ching has not formally elected Philippine La Union as a member of the Sangguniang
citizenship and, if ever he does, it would Bayan from 1992 to 1995;
already be beyond the "reasonable time"
allowed by present jurisprudence.
Page | 8
6. I elected Philippine citizenship on
July 15, 1999 in accordance with
Commonwealth Act No. 625;
7. My election was expressed in a
statement signed and sworn to by me
before a notary public;
8. I accompanied my election of
Philippine citizenship with the oath of
allegiance to the Constitution and the
Government of the Philippines;
9. I filed my election of Philippine
citizenship and my oath of allegiance to
(sic) the Civil Registrar of Tubao La Union,
and
10. I paid the amount of TEN PESOS
(Ps. 10.00) as filing fees.
Since Ching has already elected Philippine
citizenship on 15 July 1999, the question
raised is whether he has elected Philippine
citizenship within a "reasonable time." In
the affirmative, whether his citizenship by
election retroacted to the time he took the
bar examination.
When Ching was born in 1964, the
governing charter was the 1935
Constitution. Under Article IV, Section 1(3)
of the 1935 Constitution, the citizenship of
a legitimate child born of a Filipino mother
and an alien father followed the citizenship
of the father, unless, upon reaching the
age of majority, the child elected Philippine
citizenship. 4 This right to elect Philippine
citizenship was recognized in the 1973
Constitution when it provided that "(t)hose
who elect Philippine citizenship pursuant to
the provisions of the Constitution of
nineteen hundred and thirty-five" are
citizens of the Philippines. 5 Likewise, this
recognition by the 1973 Constitution was
carried over to the 1987 Constitution which
states that "(t)hose born before January 17,
1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the
age of majority" are Philippine citizens. 6 It
should be noted, however, that the 1973
and 1987 Constitutional provisions on the
election of Philippine citizenship should not
be understood as having a curative effect
on any irregularity in the acquisition of
citizenship for those covered by the 1935
Constitution. 7 If the citizenship of a person
was subject to challenge under the old
charter, it remains subject to challenge
under the new charter even if the judicial
challenge had not been commenced before
the effectivity of the new Constitution. 8
C.A. No. 625 which was enacted pursuant
to Section 1(3), Article IV of the 1935
Constitution, prescribes the procedure that
should be followed in order to make a valid
election of Philippine citizenship. Under
Section 1 thereof, legitimate children born
of Filipino mothers may elect Philippine
citizenship by expressing such intention "in
a statement to be signed and sworn to by
the party concerned before any officer
authorized to administer oaths, and shall
be filed with the nearest civil registry. The
said party shall accompany the aforesaid
statement with the oath of allegiance to the
Constitution and the Government of the
Philippines."
However, the 1935 Constitution and C.A.
No. 625 did not prescribe a time period
within which the election of Philippine
citizenship should be made. The 1935
Charter only provides that the election
should be made "upon reaching the age of
majority." The age of majority then
commenced upon reaching twenty-one (21)
years. 9 In the opinions of the Secretary of
Justice on cases involving the validity of
election of Philippine citizenship, this
dilemma was resolved by basing the time
period on the decisions of this Court prior
to the effectivity of the 1935 Constitution. In
these decisions, the proper period for
electing Philippine citizenship was, in turn,
based on the pronouncements of the
Department of State of the United States
Government to the effect that the election
should be made within a "reasonable time"
after attaining the age of majority. 10 The
phrase "reasonable time" has been
interpreted to mean that the election should
be made within three (3) years from
reaching the age of
majority. 11 However, we held in Cuenco
vs. Secretary of Justice, 12 that the three
(3) year period is not an inflexible rule. We
said:
Page | 9
It is true that this clause has been
construed to mean a reasonable period
after reaching the age of majority, and that
the Secretary of Justice has ruled that
three (3) years is the reasonable time to
elect Philippine citizenship under the
constitutional provision adverted to above,
which period may be extended under
certain circumstances, as when the person
concerned has always considered himself
a Filipino. 13
However, we cautioned in Cuenco that the
extension of the option to elect Philippine
citizenship is not indefinite:
Regardless of the foregoing, petitioner was
born on February 16, 1923. He became of
age on February 16, 1944. His election of
citizenship was made on May 15, 1951,
when he was over twenty-eight (28) years
of age, or over seven (7) years after he had
reached the age of majority. It is clear that
said election has not been made "upon
reaching the age of majority." 14
In the present case, Ching, having been
born on 11 April 1964, was already thirty-
five (35) years old when he complied with
the requirements of C.A. No. 625 on 15
June 1999, or over fourteen (14) years
after he had reached the age of majority.
Based on the interpretation of the phrase
"upon reaching the age of majority,"
Ching's election was clearly beyond, by
any reasonable yardstick, the allowable
period within which to exercise the
privilege. It should be stated, in this
connection, that the special circumstances
invoked by Ching, i.e., his continuous and
uninterrupted stay in the Philippines and
his being a certified public accountant, a
registered voter and a former elected public
official, cannot vest in him Philippine
citizenship as the law specifically lays down
the requirements for acquisition of
Philippine citizenship by election.
Definitely, the so-called special
circumstances cannot constitute what
Ching erroneously labels as informal
election of citizenship. Ching cannot find a
refuge in the case of In re: Florencio
Mallare, 15 the pertinent portion of which
reads:
And even assuming arguendo that Ana
Mallare were (sic) legally married to an
alien, Esteban's exercise of the right of
suffrage when he came of age, constitutes
a positive act of election of Philippine
citizenship. It has been established that
Esteban Mallare was a registered voter as
of April 14, 1928, and that as early as 1925
(when he was about 22 years old), Esteban
was already participating in the elections
and campaigning for certain candidate[s].
These acts are sufficient to show his
preference for Philippine citizenship. 16
Ching's reliance on Mallare is misplaced.
The facts and circumstances obtaining
therein are very different from those in the
present case, thus, negating its
applicability. First, Esteban Mallare was
born before the effectivity of the 1935
Constitution and the enactment of C.A. No.
625. Hence, the requirements and
procedures prescribed under the 1935
Constitution and C.A. No. 625 for electing
Philippine citizenship would not be
applicable to him. Second, the ruling in
Mallare was an obiter since, as correctly
pointed out by the OSG, it was not
necessary for Esteban Mallare to elect
Philippine citizenship because he was
already a Filipino, he being a natural child
of a Filipino mother. In this regard, the
Court stated:
Esteban Mallare, natural child of Ana
Mallare, a Filipina, is therefore himself a
Filipino, and no other act would be
necessary to confer on him all the rights
and privileges attached to Philippine
citizenship (U.S. vs. Ong Tianse, 29 Phil.
332; Santos Co vs. Government of the
Philippine Islands, 42 Phil. 543, Serra vs.
Republic, L-4223, May 12, 1952, Sy
Quimsuan vs. Republic, L-4693, Feb. 16,
1953; Pitallano vs. Republic, L-5111, June
28, 1954). Neither could any act be taken
on the erroneous belief that he is a non-
filipino divest him of the citizenship
privileges to which he is rightfully entitled.
17
The ruling in Mallare was reiterated and
further elaborated in Co vs. Electoral
Tribunal of the House of Representatives,
18 where we held:
Page | 10

We have jurisprudence that defines
"election" as both a formal and an informal
process.
In the case of In re: Florencio Mallare (59
SCRA 45 [1974]), the Court held that the
exercise of the right of suffrage and the
participation in election exercises constitute
a positive act of election of Philippine
citizenship. In the exact pronouncement of
the Court, we held:
Esteban's exercise of the right of suffrage
when he came of age constitutes a positive
act of Philippine citizenship. (p. 52:
emphasis supplied)
The private respondent did more than
merely exercise his right of suffrage. He
has established his life here in the
Philippines.
For those in the peculiar situation of the
respondent who cannot be excepted to
have elected Philippine citizenship as they
were already citizens, we apply the In Re
Mallare rule.
xxx xxx xxx
The filing of sworn statement or formal
declaration is a requirement for those who
still have to elect citizenship. For those
already Filipinos when the time to elect
came up, there are acts of deliberate
choice which cannot be less binding.
Entering a profession open only to
Filipinos, serving in public office where
citizenship is a qualification, voting during
election time, running for public office, and
other categorical acts of similar nature are
themselves formal manifestations for these
persons.
An election of Philippine citizenship
presupposes that the person electing is an
alien. Or his status is doubtful because he
is a national of two countries. There is no
doubt in this case about Mr. Ong's being a
Filipino when he turned twenty-one (21).
We repeat that any election of Philippine
citizenship on the part of the private
respondent would not only have been
superfluous but it would also have resulted
in an absurdity. How can a Filipino citizen
elect Philippine citizenship? 19
The Court, like the OSG, is sympathetic
with the plight of Ching. However, even if
we consider the special circumstances in
the life of Ching like his having lived in the
Philippines all his life and his consistent
belief that he is a Filipino, controlling
statutes and jurisprudence constrain us to
disagree with the recommendation of the
OSG. Consequently, we hold that Ching
failed to validly elect Philippine citizenship.
The span of fourteen (14) years that lapsed
from the time he reached the age of
majority until he finally expressed his
intention to elect Philippine citizenship is
clearly way beyond the contemplation of
the requirement of electing "upon reaching
the age of majority." Moreover, Ching has
offered no reason why he delayed his
election of Philippine citizenship. The
prescribed procedure in electing Philippine
citizenship is certainly not a tedious and
painstaking process. All that is required of
the elector is to execute an affidavit of
election of Philippine citizenship and,
thereafter, file the same with the nearest
civil registry. Ching's unreasonable and
unexplained delay in making his election
cannot be simply glossed over.
Philippine citizenship can never be treated
like a commodity that can be claimed when
needed and suppressed when convenient.
20 One who is privileged to elect Philippine
citizenship has only an inchoate right to
such citizenship. As such, he should avail
of the right with fervor, enthusiasm and
promptitude. Sadly, in this case, Ching
slept on his opportunity to elect Philippine
citizenship and, as a result. this golden
privilege slipped away from his grasp.
IN VIEW OF THE FOREGOING, the Court
Resolves to DENY Vicente D. Ching's
application for admission to the Philippine
Bar.
SO ORDERED.
Resolution March 18, 1954
Page | 11
In the Matter of the Petitions for
Admission to the Bar of Unsuccessful
Candidates of 1946 to 1953;
ALBINO CUNANAN, ET AL., petitioners.
Jose M. Aruego, M.H. de Joya, Miguel R.
Cornejo, and Antonio Enrile Inton for
petitioners.
Office of the Solicitor General Juan R.
Liwag for respondent.
DIOKNO, J.:
In recent years few controversial issues
have aroused so much public interest and
concern as Republic Act No. 972, popularly
known as the "Bar Flunkers' Act of 1953."
Under the Rules of Court governing
admission to the bar, "in order that a
candidate (for admission to the Bar) may
be deemed to have passed his
examinations successfully, he must have
obtained a general average of 75 per cent
in all subjects, without falling below 50 per
cent in any subject." (Rule 127, sec. 14,
Rules of Court). Nevertheless, considering
the varying difficulties of the different bar
examinations held since 1946 and the
varying degree of strictness with which the
examination papers were graded, this court
passed and admitted to the bar those
candidates who had obtained an average
of only 72 per cent in 1946, 69 per cent in
1947, 70 per cent in 1948, and 74 per cent
in 1949. In 1950 to 1953, the 74 per cent
was raised to 75 per cent.
Believing themselves as fully qualified to
practice law as those reconsidered and
passed by this court, and feeling conscious
of having been discriminated against (See
Explanatory Note to R.A. No. 972),
unsuccessful candidates who obtained
averages of a few percentage lower than
those admitted to the Bar agitated in
Congress for, and secured in 1951 the
passage of Senate Bill No. 12 which,
among others, reduced the passing
general average in bar examinations to 70
per cent effective since 1946. The
President requested the views of this court
on the bill. Complying with that request,
seven members of the court subscribed to
and submitted written comments adverse
thereto, and shortly thereafter the President
vetoed it. Congress did not override the
veto. Instead, it approved Senate Bill No.
371, embodying substantially the
provisions of the vetoed bill. Although the
members of this court reiterated their
unfavorable views on the matter, the
President allowed the bill to become a law
on June 21, 1953 without his signature.
The law, which incidentally was enacted in
an election year, reads in full as follows:
REPUBLIC ACT NO. 972
AN ACT TO FIX THE PASSING MARKS
FOR BAR EXAMINATIONS FROM
NINETEEN HUNDRED AND FORTY-SIX
UP TO AND INCLUDING NINETEEN
HUNDRED AND FIFTY-FIVE.
Be it enacted by the Senate and House of
Representatives of the Philippines in
Congress assembled:
SECTION 1. Notwithstanding the
provisions of section fourteen, Rule
numbered one hundred twenty-seven of
the Rules of Court, any bar candidate who
obtained a general average of seventy per
cent in any bar examinations after July
fourth, nineteen hundred and forty-six up to
the August nineteen hundred and fifty-one
bar examinations; seventy-one per cent in
the nineteen hundred and fifty-two bar
examinations; seventy-two per cent in the
in the nineteen hundred and fifty-three bar
examinations; seventy-three per cent in the
nineteen hundred and fifty-four bar
examinations; seventy-four per cent in the
nineteen hundred and fifty-five bar
examinations without a candidate obtaining
a grade below fifty per cent in any subject,
shall be allowed to take and subscribe the
corresponding oath of office as member of
the Philippine Bar: Provided, however, That
for the purpose of this Act, any exact one-
half or more of a fraction, shall be
considered as one and included as part of
the next whole number.
SEC. 2. Any bar candidate who obtained a
grade of seventy-five per cent in any
subject in any bar examination after July
fourth, nineteen hundred and forty-six shall
be deemed to have passed in such subject
or subjects and such grade or grades shall
be included in computing the passing
Page | 12
general average that said candidate may
obtain in any subsequent examinations that
he may take.
SEC. 3. This Act shall take effect upon its
approval.
Enacted on June 21, 1953, without the
Executive approval.
After its approval, many of the
unsuccessful postwar candidates filed
petitions for admission to the bar invoking
its provisions, while others whose motions
for the revision of their examination papers
were still pending also invoked the
aforesaid law as an additional ground for
admission. There are also others who have
sought simply the reconsideration of their
grades without, however, invoking the law
in question. To avoid injustice to individual
petitioners, the court first reviewed the
motions for reconsideration, irrespective of
whether or not they had invoked Republic
Act No. 972. Unfortunately, the court has
found no reason to revise their grades. If
they are to be admitted to the bar, it must
be pursuant to Republic Act No. 972 which,
if declared valid, should be applied equally
to all concerned whether they have filed
petitions or not. A complete list of the
petitioners, properly classified, affected by
this decision, as well as a more detailed
account of the history of Republic Act No.
972, are appended to this decision as
Annexes I and II. And to realize more
readily the effects of the law, the following
statistical data are set forth:
(1) The unsuccessful bar candidates who
are to be benefited by section 1 of Republic
Act No. 972 total 1,168, classified (see
original case in lawphil for copy of the list)
Of the total 1,168 candidates, 92 have
passed in subsequent examination, and
only 586 have filed either motions for
admission to the bar pursuant to said
Republic Act, or mere motions for
reconsideration.
(2) In addition, some other 10 unsuccessful
candidates are to be benefited by section 2
of said Republic Act. These candidates had
each taken from two to five different
examinations, but failed to obtain a passing
average in any of them. Consolidating,
however, their highest grades in different
subjects in previous examinations, with
their latest marks, they would be sufficient
to reach the passing average as provided
for by Republic Act No. 972.
(3) The total number of candidates to be
benefited by this Republic Acts is therefore
1,094, of which only 604 have filed
petitions. Of these 604 petitioners, 33 who
failed in 1946 to 1951 had individually
presented motions for reconsideration
which were denied, while 125 unsuccessful
candidates of 1952, and 56 of 1953, had
presented similar motions, which are still
pending because they could be favorably
affected by Republic Act No. 972, —
although as has been already stated, this
tribunal finds no sufficient reasons to
reconsider their grades
UNCONSTITUTIONALITY OF REPUBLIC
ACT NO. 972
Having been called upon to enforce a law
of far-reaching effects on the practice of the
legal profession and the administration of
justice, and because some doubts have
been expressed as to its validity, the court
set the hearing of the afore-mentioned
petitions for admission on the sole question
of whether or not Republic Act No. 972 is
constitutional.
We have been enlightened in the study of
this question by the brilliant assistance of
the members of the bar who have amply
argued, orally an in writing, on the various
aspects in which the question may be
gleaned. The valuable studies of Messrs.
E. Voltaire Garcia, Vicente J. Francisco,
Vicente Pelaez and Buenaventura
Evangelista, in favor of the validity of the
law, and of the U.P. Women's Lawyers'
Circle, the Solicitor General, Messrs. Arturo
A. Alafriz, Enrique M. Fernando, Vicente
Abad Santos, Carlos A. Barrios, Vicente
del Rosario, Juan de Blancaflor, Mamerto
V. Gonzales, and Roman Ozaeta against it,
aside from the memoranda of counsel for
petitioners, Messrs. Jose M. Aruego, M.H.
de Joya, Miguel R. Cornejo and Antonio
Enrile Inton, and of petitioners Cabrera,
Page | 13
Macasaet and Galema themselves, has
greatly helped us in this task. The legal
researchers of the court have exhausted
almost all Philippine and American
jurisprudence on the matter. The question
has been the object of intense deliberation
for a long time by the Tribunal, and finally,
after the voting, the preparation of the
majority opinion was assigned to a new
member in order to place it as humanly as
possible above all suspicion of prejudice or
partiality.
Republic Act No. 972 has for its object,
according to its author, to admit to the Bar,
those candidates who suffered from
insufficiency of reading materials and
inadequate preparation. Quoting a portion
of the Explanatory Note of the proposed
bill, its author Honorable Senator Pablo
Angeles David stated:
The reason for relaxing the standard 75 per
cent passing grade is the tremendous
handicap which students during the years
immediately after the Japanese occupation
has to overcome such as the insufficiency
of reading materials and the inadequacy of
the preparation of students who took up
law soon after the liberation.
Of the 9,675 candidates who took the
examinations from 1946 to 1952, 5,236
passed. And now it is claimed that in
addition 604 candidates be admitted (which
in reality total 1,094), because they
suffered from "insufficiency of reading
materials" and of "inadequacy of
preparation."
By its declared objective, the law is
contrary to public interest because it
qualifies 1,094 law graduates who
confessedly had inadequate preparation for
the practice of the profession, as was
exactly found by this Tribunal in the
aforesaid examinations. The public interest
demands of legal profession adequate
preparation and efficiency, precisely more
so as legal problem evolved by the times
become more difficult. An adequate legal
preparation is one of the vital requisites for
the practice of law that should be
developed constantly and maintained
firmly. To the legal profession is entrusted
the protection of property, life, honor and
civil liberties. To approve officially of those
inadequately prepared individuals to
dedicate themselves to such a delicate
mission is to create a serious social
danger. Moreover, the statement that there
was an insufficiency of legal reading
materials is grossly exaggerated. There
were abundant materials. Decisions of this
court alone in mimeographed copies were
made available to the public during those
years and private enterprises had also
published them in monthly magazines and
annual digests. The Official Gazette had
been published continuously. Books and
magazines published abroad have entered
without restriction since 1945. Many law
books, some even with revised and
enlarged editions have been printed locally
during those periods. A new set of
Philippine Reports began to be published
since 1946, which continued to be
supplemented by the addition of new
volumes. Those are facts of public
knowledge.
Notwithstanding all these, if the law in
question is valid, it has to be enforced.
The question is not new in its fundamental
aspect or from the point of view of
applicable principles, but the resolution of
the question would have been easier had
an identical case of similar background
been picked out from the jurisprudence we
daily consult. Is there any precedent in the
long Anglo-Saxon legal history, from which
has been directly derived the judicial
system established here with its lofty ideals
by the Congress of the United States, and
which we have preserved and attempted to
improve, or in our contemporaneous
judicial history of more than half a century?
From the citations of those defending the
law, we can not find a case in which the
validity of a similar law had been sustained,
while those against its validity cite, among
others, the cases of Day (In re Day, 54 NE
646), of Cannon (State vs. Cannon, 240
NW, 441), the opinion of the Supreme
Court of Massachusetts in 1932 (81 ALR
1061), of Guariña (24 Phil., 37), aside from
the opinion of the President which is
expressed in his vote of the original bill and
which the postponement of the contested
law respects.
Page | 14

This law has no precedent in its favor.
When similar laws in other countries had
been promulgated, the judiciary
immediately declared them without force or
effect. It is not within our power to offer a
precedent to uphold the disputed law.
To be exact, we ought to state here that we
have examined carefully the case that has
been cited to us as a favorable precedent
of the law — that of Cooper (22 NY, 81),
where the Court of Appeals of New York
revoked the decision of the Supreme court
of that State, denying the petition of Cooper
to be admitted to the practice of law under
the provisions of a statute concerning the
school of law of Columbia College
promulgated on April 7, 1860, which was
declared by the Court of Appeals to be
consistent with the Constitution of the state
of New York.
It appears that the Constitution of New
York at that time provided:
They (i.e., the judges) shall not hold any
other office of public trust. All votes for
either of them for any elective office except
that of the Court of Appeals, given by the
Legislature or the people, shall be void.
They shall not exercise any power of
appointment to public office. Any male
citizen of the age of twenty-one years, of
good moral character, and who possesses
the requisite qualifications of learning and
ability, shall be entitled to admission to
practice in all the courts of this State. (p.
93).
According to the Court of Appeals, the
object of the constitutional precept is as
follows:
Attorneys, solicitors, etc., were public
officers; the power of appointing them had
previously rested with the judges, and this
was the principal appointing power which
they possessed. The convention was
evidently dissatisfied with the manner in
which this power had been exercised, and
with the restrictions which the judges had
imposed upon admission to practice before
them. The prohibitory clause in the section
quoted was aimed directly at this power,
and the insertion of the provision"
expecting the admission of attorneys, in
this particular section of the Constitution,
evidently arose from its connection with the
object of this prohibitory clause. There is
nothing indicative of confidence in the
courts or of a disposition to preserve any
portion of their power over this subject,
unless the Supreme Court is right in the
inference it draws from the use of the word
`admission' in the action referred to. It is
urged that the admission spoken of must
be by the court; that to admit means to
grant leave, and that the power of granting
necessarily implies the power of refusing,
and of course the right of determining
whether the applicant possesses the
requisite qualifications to entitle him to
admission.
These positions may all be conceded,
without affecting the validity of the act. (p.
93.)
Now, with respect to the law of April 7,
1860, the decision seems to indicate that it
provided that the possession of a diploma
of the school of law of Columbia College
conferring the degree of Bachelor of Laws
was evidence of the legal qualifications that
the constitution required of applicants for
admission to the Bar. The decision does
not however quote the text of the law,
which we cannot find in any public or
accessible private library in the country.
In the case of Cooper, supra, to make the
law consistent with the Constitution of New
York, the Court of Appeals said of the
object of the law:
The motive for passing the act in question
is apparent. Columbia College being an
institution of established reputation, and
having a law department under the charge
of able professors, the students in which
department were not only subjected to a
formal examination by the law committee of
the institution, but to a certain definite
period of study before being entitled to a
diploma of being graduates, the Legislature
evidently, and no doubt justly, considered
this examination, together with the
preliminary study required by the act, as
fully equivalent as a test of legal
requirements, to the ordinary examination
by the court; and as rendering the latter
Page | 15
examination, to which no definite period of
preliminary study was essential,
unnecessary and burdensome.
The act was obviously passed with
reference to the learning and ability of the
applicant, and for the mere purpose of
substituting the examination by the law
committee of the college for that of the
court. It could have had no other object,
and hence no greater scope should be
given to its provisions. We cannot suppose
that the Legislature designed entirely to
dispense with the plain and explicit
requirements of the Constitution; and the
act contains nothing whatever to indicate
an intention that the authorities of the
college should inquire as to the age,
citizenship, etc., of the students before
granting a diploma. The only rational
interpretation of which the act admits is,
that it was intended to make the college
diploma competent evidence as to the legal
attainments of the applicant, and nothing
else. To this extent alone it operates as a
modification of pre-existing statutes, and it
is to be read in connection with these
statutes and with the Constitution itself in
order to determine the present condition of
the law on the subject. (p.89)
xxx xxx xxx
The Legislature has not taken from the
court its jurisdiction over the question of
admission, that has simply prescribed what
shall be competent evidence in certain
cases upon that question. (p.93)
From the foregoing, the complete
inapplicability of the case of Cooper with
that at bar may be clearly seen. Please
note only the following distinctions:
(1) The law of New York does not require
that any candidate of Columbia College
who failed in the bar examinations be
admitted to the practice of law.
(2) The law of New York according to the
very decision of Cooper, has not taken
from the court its jurisdiction over the
question of admission of attorney at law; in
effect, it does not decree the admission of
any lawyer.
(3) The Constitution of New York at that
time and that of the Philippines are entirely
different on the matter of admission of the
practice of law.
In the judicial system from which ours has
been evolved, the admission, suspension,
disbarment and reinstatement of attorneys
at law in the practice of the profession and
their supervision have been disputably a
judicial function and responsibility. Because
of this attribute, its continuous and zealous
possession and exercise by the judicial
power have been demonstrated during
more than six centuries, which certainly
"constitutes the most solid of titles." Even
considering the power granted to Congress
by our Constitution to repeal, alter
supplement the rules promulgated by this
Court regarding the admission to the
practice of law, to our judgment and
proposition that the admission, suspension,
disbarment and reinstatement of the
attorneys at law is a legislative function,
properly belonging to Congress, is
unacceptable. The function requires (1)
previously established rules and principles,
(2) concrete facts, whether past or present,
affecting determinate individuals. and (3)
decision as to whether these facts are
governed by the rules and principles; in
effect, a judicial function of the highest
degree. And it becomes more undisputably
judicial, and not legislative, if previous
judicial resolutions on the petitions of these
same individuals are attempted to be
revoked or modified.
We have said that in the judicial system
from which ours has been derived, the act
of admitting, suspending, disbarring and
reinstating attorneys at law in the practice
of the profession is concededly judicial. A
comprehensive and conscientious study of
this matter had been undertaken in the
case of State vs. Cannon (1932) 240 NW
441, in which the validity of a legislative
enactment providing that Cannon be
permitted to practice before the courts was
discussed. From the text of this decision
we quote the following paragraphs:
This statute presents an assertion of
legislative power without parallel in the
Page | 16
history of the English speaking people so
far as we have been able to ascertain.
There has been much uncertainty as to the
extent of the power of the Legislature to
prescribe the ultimate qualifications of
attorney at law has been expressly
committed to the courts, and the act of
admission has always been regarded as a
judicial function. This act purports to
constitute Mr. Cannon an attorney at law,
and in this respect it stands alone as an
assertion of legislative power. (p. 444)
Under the Constitution all legislative power
is vested in a Senate and Assembly.
(Section 1, art. 4.) In so far as the
prescribing of qualifications for admission
to the bar are legislative in character, the
Legislature is acting within its constitutional
authority when it sets up and prescribes
such qualifications. (p. 444)
But when the Legislature has prescribed
those qualifications which in its judgment
will serve the purpose of legitimate
legislative solicitude, is the power of the
court to impose other and further exactions
and qualifications foreclosed or exhausted?
(p. 444)
Under our Constitution the judicial and
legislative departments are distinct,
independent, and coordinate branches of
the government. Neither branch enjoys all
the powers of sovereignty which properly
belongs to its department. Neither
department should so act as to embarrass
the other in the discharge of its respective
functions. That was the scheme and
thought of the people setting upon the form
of government under which we exist. State
vs. Hastings, 10 Wis., 525; Attorney
General ex rel. Bashford vs. Barstow, 4
Wis., 567. (p. 445)
The judicial department of government is
responsible for the plane upon which the
administration of justice is maintained. Its
responsibility in this respect is exclusive.
By committing a portion of the powers of
sovereignty to the judicial department of
our state government, under 42a scheme
which it was supposed rendered it immune
from embarrassment or interference by any
other department of government, the courts
cannot escape responsibility fir the manner
in which the powers of sovereignty thus
committed to the judicial department are
exercised. (p. 445)
The relation at the bar to the courts is a
peculiar and intimate relationship. The bar
is an attache of the courts. The quality of
justice dispense by the courts depends in
no small degree upon the integrity of its
bar. An unfaithful bar may easily bring
scandal and reproach to the administration
of justice and bring the courts themselves
into disrepute. (p.445)
Through all time courts have exercised a
direct and severe supervision over their
bars, at least in the English speaking
countries. (p. 445)
After explaining the history of the case, the
Court ends thus:
Our conclusion may be epitomized as
follows: For more than six centuries prior to
the adoption of our Constitution, the courts
of England, concededly subordinate to
Parliament since the Revolution of 1688,
had exercise the right of determining who
should be admitted to the practice of law,
which, as was said in Matter of the
Sergeant's at Law, 6 Bingham's New
Cases 235, "constitutes the most solid of
all titles." If the courts and judicial power be
regarded as an entity, the power to
determine who should be admitted to
practice law is a constituent element of that
entity. It may be difficult to isolate that
element and say with assurance that it is
either a part of the inherent power of the
court, or an essential element of the judicial
power exercised by the court, but that it is a
power belonging to the judicial entity and
made of not only a sovereign institution, but
made of it a separate independent, and
coordinate branch of the government. They
took this institution along with the power
traditionally exercise to determine who
should constitute its attorney at law. There
is no express provision in the Constitution
which indicates an intent that this traditional
power of the judicial department should in
any manner be subject to legislative
control. Perhaps the dominant thought of
the framers of our constitution was to make
the three great departments of government
Page | 17
separate and independent of one another.
The idea that the Legislature might
embarrass the judicial department by
prescribing inadequate qualifications for
attorneys at law is inconsistent with the
dominant purpose of making the judicial
independent of the legislative department,
and such a purpose should not be inferred
in the absence of express constitutional
provisions. While the legislature may
legislate with respect to the qualifications of
attorneys, but is incidental merely to its
general and unquestioned power to protect
the public interest. When it does legislate a
fixing a standard of qualifications required
of attorneys at law in order that public
interests may be protected, such
qualifications do not constitute only a
minimum standard and limit the class from
which the court must make its selection.
Such legislative qualifications do not
constitute the ultimate qualifications
beyond which the court cannot go in fixing
additional qualifications deemed necessary
by the course of the proper administration
of judicial functions. There is no legislative
power to compel courts to admit to their
bars persons deemed by them unfit to
exercise the prerogatives of an attorney at
law. (p. 450)
Furthermore, it is an unlawful attempt to
exercise the power of appointment. It is
quite likely true that the legislature may
exercise the power of appointment when it
is in pursuance of a legislative functions.
However, the authorities are well-nigh
unanimous that the power to admit
attorneys to the practice of law is a judicial
function. In all of the states, except New
Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A.
12), so far as our investigation reveals,
attorneys receive their formal license to
practice law by their admission as
members of the bar of the court so
admitting. Cor. Jur. 572; Ex parte
Secombre, 19 How. 9,15 L. Ed. 565; Ex
parte Garland, 4 Wall. 333, 18 L. Ed. 366;
Randall vs. Brigham, 7 Wall. 53, 19 L. Ed.
285; Hanson vs. Grattan, 48 Kan, 843, 115
P. 646, 34 L.R.A. 519; Danforth vs. Egan,
23 S. D. 43, 119 N.W. 1021, 130 Am. St.
Rep. 1030, 20 Ann. Cas. 413.
The power of admitting an attorney to
practice having been perpetually exercised
by the courts, it having been so generally
held that the act of the court in admitting an
attorney to practice is the judgment of the
court, and an attempt as this on the part of
the Legislature to confer such right upon
any one being most exceedingly
uncommon, it seems clear that the
licensing of an attorney is and always has
been a purely judicial function, no matter
where the power to determine the
qualifications may reside. (p. 451)
In that same year of 1932, the Supreme
Court of Massachusetts, in answering a
consultation of the Senate of that State,
180 NE 725, said:
It is indispensible to the administration of
justice and to interpretation of the laws that
there be members of the bar of sufficient
ability, adequate learning and sound moral
character. This arises from the need of
enlightened assistance to the honest, and
restraining authority over the knavish,
litigant. It is highly important, also that the
public be protected from incompetent and
vicious practitioners, whose opportunity for
doing mischief is wide. It was said by
Cardoz, C.L., in People ex rel. Karlin vs.
Culkin, 242 N.Y. 456, 470, 471, 162 N.E.
487, 489, 60 A.L.R. 851: "Membership in
the bar is a privilege burden with
conditions." One is admitted to the bar "for
something more than private gain." He
becomes an "officer of the court", and ,like
the court itself, an instrument or agency to
advance the end of justice. His cooperation
with the court is due "whenever justice
would be imperiled if cooperation was
withheld." Without such attorneys at law
the judicial department of government
would be hampered in the performance of
its duties. That has been the history of
attorneys under the common law, both in
this country and England. Admission to
practice as an attorney at law is almost
without exception conceded to be a judicial
function. Petition to that end is filed in
courts, as are other proceedings invoking
judicial action. Admission to the bar is
accomplish and made open and notorious
by a decision of the court entered upon its
records. The establishment by the
Constitution of the judicial department
Page | 18
conferred authority necessary to the
exercise of its powers as a coordinate
department of government. It is an inherent
power of such a department of government
ultimately to determine the qualifications of
those to be admitted to practice in its
courts, for assisting in its work, and to
protect itself in this respect from the unfit,
those lacking in sufficient learning, and
those not possessing good moral
character. Chief Justice Taney stated
succinctly and with finality in Ex parte
Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It
has been well settled, by the rules and
practice of common-law courts, that it rests
exclusively with the court to determine who
is qualified to become one of its officers, as
an attorney and counselor, and for what
cause he ought to be removed." (p.727)
In the case of Day and others who
collectively filed a petition to secure license
to practice the legal profession by virtue of
a law of state (In re Day, 54 NE 646), the
court said in part:
In the case of Ex parte Garland, 4 Wall,
333, 18 L. Ed. 366, the court, holding the
test oath for attorneys to be
unconstitutional, explained the nature of
the attorney's office as follows: "They are
officers of the court, admitted as such by its
order, upon evidence of their possessing
sufficient legal learning and fair private
character. It has always been the general
practice in this country to obtain this
evidence by an examination of the parties.
In this court the fact of the admission of
such officers in the highest court of the
states to which they, respectively, belong
for, three years preceding their application,
is regarded as sufficient evidence of the
possession of the requisite legal learning,
and the statement of counsel moving their
admission sufficient evidence that their
private and professional character is fair.
The order of admission is the judgment of
the court that the parties possess the
requisite qualifications as attorneys and
counselors, and are entitled to appear as
such and conduct causes therein. From its
entry the parties become officers of the
court, and are responsible to it for
professional misconduct. They hold their
office during good behavior, and can only
be deprived of it for misconduct
ascertained and declared by the judgment
of the court after opportunity to be heard
has been afforded. Ex parte Hoyfron,
admission or their exclusion is not the
exercise of a mere ministerial power. It is
the exercise of judicial power, and has
been so held in numerous cases. It was so
held by the court of appeals of New York in
the matter of the application of Cooper for
admission. Re Cooper 22 N. Y. 81.
"Attorneys and Counselors", said that
court, "are not only officers of the court, but
officers whose duties relate almost
exclusively to proceedings of a judicial
nature; and hence their appointment may,
with propriety, be entrusted to the court,
and the latter, in performing his duty, may
very justly considered as engaged in the
exercise of their appropriate judicial
functions." (pp. 650-651).
We quote from other cases, the following
pertinent portions:
Admission to practice of law is almost
without exception conceded everywhere to
be the exercise of a judicial function, and
this opinion need not be burdened with
citations in this point. Admission to practice
have also been held to be the exercise of
one of the inherent powers of the court. —
Re Bruen, 102 Wash. 472, 172 Pac. 906.
Admission to the practice of law is the
exercise of a judicial function, and is an
inherent power of the court. — A.C.
Brydonjack, vs. State Bar of California, 281
Pac. 1018; See Annotation on Power of
Legislature respecting admission to bar,
65, A.L. R. 1512.
On this matter there is certainly a clear
distinction between the functions of the
judicial and legislative departments of the
government.
The distinction between the functions of the
legislative and the judicial departments is
that it is the province of the legislature to
establish rules that shall regulate and
govern in matters of transactions occurring
subsequent to the legislative action, while
the judiciary determines rights and
obligations with reference to transactions
that are past or conditions that exist at the
Page | 19
time of the exercise of judicial power, and
the distinction is a vital one and not subject
to alteration or change either by legislative
action or by judicial decree.
The judiciary cannot consent that its
province shall be invaded by either of the
other departments of the government. —
16 C.J.S., Constitutional Law, p. 229.
If the legislature cannot thus indirectly
control the action of the courts by requiring
of them construction of the law according to
its own views, it is very plain it cannot do so
directly, by settling aside their judgments,
compelling them to grant new trials,
ordering the discharge of offenders, or
directing what particular steps shall be
taken in the progress of a judicial inquiry.
— Cooley's Constitutional Limitations, 192.
In decreeing the bar candidates who
obtained in the bar examinations of 1946 to
1952, a general average of 70 per cent
without falling below 50 per cent in any
subject, be admitted in mass to the practice
of law, the disputed law is not a legislation;
it is a judgment — a judgment revoking
those promulgated by this Court during the
aforecited year affecting the bar candidates
concerned; and although this Court
certainly can revoke these judgments even
now, for justifiable reasons, it is no less
certain that only this Court, and not the
legislative nor executive department, that
may be so. Any attempt on the part of any
of these departments would be a clear
usurpation of its functions, as is the case
with the law in question.
That the Constitution has conferred on
Congress the power to repeal, alter or
supplement the rule promulgated by this
Tribunal, concerning the admission to the
practice of law, is no valid argument.
Section 13, article VIII of the Constitution
provides:
Section 13. The Supreme Court shall have
the power to promulgate rules concerning
pleading, practice, and procedure in all
courts, and the admission to the practice of
law. Said rules shall be uniform for all
courts of the same grade and shall not
diminish, increase or modify substantive
rights. The existing laws on pleading,
practice and procedure are hereby
repealed as statutes, and are declared
Rules of Court, subject to the power of the
Supreme Court to alter and modify the
same. The Congress shall have the power
to repeal, alter, or supplement the rules
concerning pleading, practice, and
procedure, and the admission to the
practice of law in the Philippines. —
Constitution of the Philippines, Art. VIII,
sec. 13.
It will be noted that the Constitution has not
conferred on Congress and this Tribunal
equal responsibilities concerning the
admission to the practice of law. the
primary power and responsibility which the
Constitution recognizes continue to reside
in this Court. Had Congress found that this
Court has not promulgated any rule on the
matter, it would have nothing over which to
exercise the power granted to it. Congress
may repeal, alter and supplement the rules
promulgated by this Court, but the authority
and responsibility over the admission,
suspension, disbarment and reinstatement
of attorneys at law and their supervision
remain vested in the Supreme Court. The
power to repeal, alter and supplement the
rules does not signify nor permit that
Congress substitute or take the place of
this Tribunal in the exercise of its primary
power on the matter. The Constitution does
not say nor mean that Congress may
admit, suspend, disbar or reinstate directly
attorneys at law, or a determinate group of
individuals to the practice of law. Its power
is limited to repeal, modify or supplement
the existing rules on the matter, if
according to its judgment the need for a
better service of the legal profession
requires it. But this power does not relieve
this Court of its responsibility to admit,
suspend, disbar and reinstate attorneys at
law and supervise the practice of the legal
profession.
Being coordinate and independent
branches, the power to promulgate and
enforce rules for the admission to the
practice of law and the concurrent power to
repeal, alter and supplement them may and
should be exercised with the respect that
each owes to the other, giving careful
consideration to the responsibility which the
Page | 20
nature of each department requires. These
powers have existed together for centuries
without diminution on each part; the
harmonious delimitation being found in that
the legislature may and should examine if
the existing rules on the admission to the
Bar respond to the demands which public
interest requires of a Bar endowed with
high virtues, culture, training and
responsibility. The legislature may, by
means of appeal, amendment or
supplemental rules, fill up any deficiency
that it may find, and the judicial power,
which has the inherent responsibility for a
good and efficient administration of justice
and the supervision of the practice of the
legal profession, should consider these
reforms as the minimum standards for the
elevation of the profession, and see to it
that with these reforms the lofty objective
that is desired in the exercise of its
traditional duty of admitting, suspending,
disbarring and reinstating attorneys at law
is realized. They are powers which,
exercise within their proper constitutional
limits, are not repugnant, but rather
complementary to each other in attaining
the establishment of a Bar that would
respond to the increasing and exacting
necessities of the administration of justice.
The case of Guariña (1913) 24 Phil., 37,
illustrates our criterion. Guariña took
examination and failed by a few points to
obtain the general average. A recently
enacted law provided that one who had
been appointed to the position of Fiscal
may be admitted to the practice of law
without a previous examination. The
Government appointed Guariña and he
discharged the duties of Fiscal in a remote
province. This tribunal refused to give his
license without previous examinations. The
court said:
Relying upon the provisions of section 2 of
Act No. 1597, the applicant in this case
seeks admission to the bar, without taking
the prescribed examination, on the ground
that he holds the office of provincial fiscal
for the Province of Batanes.
Section 2 of Act No. 1597, enacted
February 28, 1907, is as follows:
Sec. 2. Paragraph one of section thirteen of
Act Numbered One Hundred and ninety,
entitled "An Act providing a Code of
Procedure in Civil Actions and Special
Proceedings in the Philippine Islands," is
hereby amended to read as follows:
1. Those who have been duly licensed
under the laws and orders of the Islands
under the sovereignty of Spain or of the
United States and are in good and regular
standing as members of the bar of the
Philippine Islands at the time of the
adoption of this code; Provided, That any
person who, prior to the passage of this
act, or at any time thereafter, shall have
held, under the authority of the United
States, the position of justice of the
Supreme Court, judge of the Court of First
Instance, or judge or associate judge of the
Court of Land Registration, of the
Philippine Islands, or the position of
Attorney General, Solicitor General,
Assistant Attorney General, assistant
attorney in the office of the Attorney
General, prosecuting attorney for the City
of Manila, city attorney of Manila, assistant
city attorney of Manila, provincial fiscal,
attorney for the Moro Province, or assistant
attorney for the Moro Province, may be
licensed to practice law in the courts of the
Philippine Islands without an examination,
upon motion before the Supreme Court and
establishing such fact to the satisfaction of
said court.
The records of this court disclose that on a
former occasion this appellant took, and
failed to pass the prescribed examination.
The report of the examining board, dated
March 23, 1907, shows that he received an
average of only 71 per cent in the various
branches of legal learning upon which he
was examined, thus falling four points short
of the required percentage of 75. We would
be delinquent in the performance of our
duty to the public and to the bar, if, in the
face of this affirmative indication of the
deficiency of the applicant in the required
qualifications of learning in the law at the
time when he presented his former
application for admission to the bar, we
should grant him license to practice law in
the courts of these Islands, without first
satisfying ourselves that despite his failure
to pass the examination on that occasion,
Page | 21
he now "possesses the necessary
qualifications of learning and ability."
But it is contented that under the provisions
of the above-cited statute the applicant is
entitled as of right to be admitted to the bar
without taking the prescribed examination
"upon motion before the Supreme Court"
accompanied by satisfactory proof that he
has held and now holds the office of
provincial fiscal of the Province of Batanes.
It is urged that having in mind the object
which the legislator apparently sought to
attain in enacting the above-cited
amendment to the earlier statute, and in
view of the context generally and especially
of the fact that the amendment was
inserted as a proviso in that section of the
original Act which specifically provides for
the admission of certain candidates without
examination. It is contented that this
mandatory construction is imperatively
required in order to give effect to the
apparent intention of the legislator, and to
the candidate's claim de jure to have the
power exercised.
And after copying article 9 of Act of July 1,
1902 of the Congress of the United States,
articles 2, 16 and 17 of Act No. 136, and
articles 13 to 16 of Act 190, the Court
continued:
Manifestly, the jurisdiction thus conferred
upon this court by the commission and
confirmed to it by the Act of Congress
would be limited and restricted, and in a
case such as that under consideration
wholly destroyed, by giving the word "may,"
as used in the above citation from Act of
Congress of July 1, 1902, or of any Act of
Congress prescribing, defining or limiting
the power conferred upon the commission
is to that extent invalid and void, as
transcending its rightful limits and authority.
Speaking on the application of the law to
those who were appointed to the positions
enumerated, and with particular emphasis
in the case of Guariña, the Court held:
In the various cases wherein applications
for the admission to the bar under the
provisions of this statute have been
considered heretofore, we have accepted
the fact that such appointments had been
made as satisfactory evidence of the
qualifications of the applicant. But in all of
those cases we had reason to believe that
the applicants had been practicing
attorneys prior to the date of their
appointment.
In the case under consideration, however,
it affirmatively appears that the applicant
was not and never had been practicing
attorney in this or any other jurisdiction
prior to the date of his appointment as
provincial fiscal, and it further affirmatively
appears that he was deficient in the
required qualifications at the time when he
last applied for admission to the bar.
In the light of this affirmative proof of his
defieciency on that occasion, we do not
think that his appointment to the office of
provincial fiscal is in itself satisfactory proof
if his possession of the necessary
qualifications of learning and ability. We
conclude therefore that this application for
license to practice in the courts of the
Philippines, should be denied.
In view, however, of the fact that when he
took the examination he fell only four points
short of the necessary grade to entitle him
to a license to practice; and in view also of
the fact that since that time he has held the
responsible office of the governor of the
Province of Sorsogon and presumably
gave evidence of such marked ability in the
performance of the duties of that office that
the Chief Executive, with the consent and
approval of the Philippine Commission,
sought to retain him in the Government
service by appointing him to the office of
provincial fiscal, we think we would be
justified under the above-cited provisions of
Act No. 1597 in waiving in his case the
ordinary examination prescribed by general
rule, provided he offers satisfactory
evidence of his proficiency in a special
examination which will be given him by a
committee of the court upon his application
therefor, without prejudice to his right, if he
desires so to do, to present himself at any
of the ordinary examinations prescribed by
general rule. — (In re Guariña, pp. 48-49.)
It is obvious, therefore, that the ultimate
power to grant license for the practice of
law belongs exclusively to this Court, and
Page | 22
the law passed by Congress on the matter
is of permissive character, or as other
authorities say, merely to fix the minimum
conditions for the license.
The law in question, like those in the case
of Day and Cannon, has been found also
to suffer from the fatal defect of being a
class legislation, and that if it has intended
to make a classification, it is arbitrary and
unreasonable.
In the case of Day, a law enacted on
February 21, 1899 required of the Supreme
Court, until December 31 of that year, to
grant license for the practice of law to those
students who began studying before
November 4, 1897, and had studied for two
years and presented a diploma issued by a
school of law, or to those who had studied
in a law office and would pass an
examination, or to those who had studied
for three years if they commenced their
studies after the aforementioned date. The
Supreme Court declared that this law was
unconstitutional being, among others, a
class legislation. The Court said:
This is an application to this court for
admission to the bar of this state by virtue
of diplomas from law schools issued to the
applicants. The act of the general assembly
passed in 1899, under which the
application is made, is entitled "An act to
amend section 1 of an act entitled "An act
to revise the law in relation to attorneys and
counselors," approved March 28, 1884, in
force July 1, 1874." The amendment, so far
as it appears in the enacting clause,
consists in the addition to the section of the
following: "And every application for a
license who shall comply with the rules of
the supreme court in regard to admission to
the bar in force at the time such applicant
commend the study of law, either in a law
or office or a law school or college, shall be
granted a license under this act
notwithstanding any subsequent changes
in said rules". — In re Day et al, 54 N.Y., p.
646.
. . . After said provision there is a double
proviso, one branch of which is that up to
December 31, 1899, this court shall grant a
license of admittance to the bar to the
holder of every diploma regularly issued by
any law school regularly organized under
the laws of this state, whose regular course
of law studies is two years, and requiring
an attendance by the student of at least 36
weeks in each of such years, and showing
that the student began the study of law
prior to November 4, 1897, and
accompanied with the usual proofs of good
moral character. The other branch of the
proviso is that any student who has studied
law for two years in a law office, or part of
such time in a law office, "and part in the
aforesaid law school," and whose course of
study began prior to November 4, 1897,
shall be admitted upon a satisfactory
examination by the examining board in the
branches now required by the rules of this
court. If the right to admission exists at all,
it is by virtue of the proviso, which, it is
claimed, confers substantial rights and
privileges upon the persons named therein,
and establishes rules of legislative creation
for their admission to the bar. (p. 647.)
Considering the proviso, however, as an
enactment, it is clearly a special legislation,
prohibited by the constitution, and invalid
as such. If the legislature had any right to
admit attorneys to practice in the courts
and take part in the administration of
justice, and could prescribe the character
of evidence which should be received by
the court as conclusive of the requisite
learning and ability of persons to practice
law, it could only be done by a general law,
persons or classes of persons. Const. art 4,
section 2. The right to practice law is a
privilege, and a license for that purpose
makes the holder an officer of the court,
and confers upon him the right to appear
for litigants, to argue causes, and to collect
fees therefor, and creates certain
exemptions, such as from jury services and
arrest on civil process while attending
court. The law conferring such privileges
must be general in its operation. No doubt
the legislature, in framing an enactment for
that purpose, may classify persons so long
as the law establishing classes in general,
and has some reasonable relation to the
end sought. There must be some
difference which furnishes a reasonable
basis for different one, having no just
relation to the subject of the legislation.
Braceville Coal Co. vs. People, 147 Ill. 66,
35 N.E. 62; Ritchie vs. People, 155 Ill. 98,
Page | 23
40 N.E. 454; Railroad Co. vs. Ellis, 165
U.S. 150, 17 Sup. Ct. 255.
The length of time a physician has
practiced, and the skill acquired by
experience, may furnish a basis for
classification (Williams vs. People 121 Ill.
48, II N.E. 881); but the place where such
physician has resided and practiced his
profession cannot furnish such basis, and
is an arbitrary discrimination, making an
enactment based upon it void (State vs.
Pennyeor, 65 N.E. 113, 18 Atl. 878). Here
the legislature undertakes to say what shall
serve as a test of fitness for the profession
of the law, and plainly, any classification
must have some reference to learning,
character, or ability to engage in such
practice. The proviso is limited, first, to a
class of persons who began the study of
law prior to November 4, 1897. This class
is subdivided into two classes — First,
those presenting diplomas issued by any
law school of this state before December
31, 1899; and, second, those who studied
law for the period of two years in a law
office, or part of the time in a law school
and part in a law office, who are to be
admitted upon examination in the subjects
specified in the present rules of this court,
and as to this latter subdivision there
seems to be no limit of time for making
application for admission. As to both
classes, the conditions of the rules are
dispensed with, and as between the two
different conditions and limits of time are
fixed. No course of study is prescribed for
the law school, but a diploma granted upon
the completion of any sort of course its
managers may prescribe is made all-
sufficient. Can there be anything with
relation to the qualifications or fitness of
persons to practice law resting upon the
mere date of November 4, 1897, which will
furnish a basis of classification. Plainly not.
Those who began the study of law
November 4th could qualify themselves to
practice in two years as well as those who
began on the 3rd. The classes named in
the proviso need spend only two years in
study, while those who commenced the
next day must spend three years, although
they would complete two years before the
time limit. The one who commenced on the
3rd. If possessed of a diploma, is to be
admitted without examination before
December 31, 1899, and without any
prescribed course of study, while as to the
other the prescribed course must be
pursued, and the diploma is utterly useless.
Such classification cannot rest upon any
natural reason, or bear any just relation to
the subject sought, and none is suggested.
The proviso is for the sole purpose of
bestowing privileges upon certain defined
persons. (pp. 647-648.)
In the case of Cannon above cited, State
vs. Cannon, 240 N.W. 441, where the
legislature attempted by law to reinstate
Cannon to the practice of law, the court
also held with regards to its aspect of being
a class legislation:
But the statute is invalid for another reason.
If it be granted that the legislature has
power to prescribe ultimately and definitely
the qualifications upon which courts must
admit and license those applying as
attorneys at law, that power can not be
exercised in the manner here attempted.
That power must be exercised through
general laws which will apply to all alike
and accord equal opportunity to all.
Speaking of the right of the Legislature to
exact qualifications of those desiring to
pursue chosen callings, Mr. Justice Field in
the case of Dent. vs. West Virginia, 129
U.S. 114, 121, 9 S. Ct. 232, 233, 32 L. Ed.
626, said: "It is undoubtedly the right of
every citizen of the United States to follow
any lawful calling, business or profession
he may choose, subject only to such
restrictions as are imposed upon all
persons of like age, sex, and condition."
This right may in many respects be
considered as a distinguishing feature of
our republican institutions. Here all
vocations are all open to every one on like
conditions. All may be pursued as sources
of livelihood, some requiring years of study
and great learning for their successful
prosecution. The interest, or, as it is
sometimes termed, the "estate" acquired in
them — that is, the right to continue their
prosecution — is often of great value to the
possessors and cannot be arbitrarily taken
from them, any more than their real or
personal property can be thus taken. It is
fundamental under our system of
government that all similarly situated and
Page | 24
possessing equal qualifications shall enjoy
equal opportunities. Even statutes
regulating the practice of medicine,
requiring medications to establish the
possession on the part of the application of
his proper qualifications before he may be
licensed to practice, have been challenged,
and courts have seriously considered
whether the exemption from such
examinations of those practicing in the
state at the time of the enactment of the
law rendered such law unconstitutional
because of infringement upon this general
principle. State vs. Thomas Call, 121 N.C.
643, 28 S.E. 517; see, also, The State ex
rel. Winkler vs. Rosenberg, 101 Wis. 172,
76 N.W. 345; State vs. Whitcom, 122 Wis.
110, 99 N.W. 468.
This law singles out Mr. Cannon and
assumes to confer upon him the right to
practice law and to constitute him an officer
of this Court as a mere matter of legislative
grace or favor. It is not material that he had
once established his right to practice law
and that one time he possessed the
requisite learning and other qualifications to
entitle him to that right. That fact in no
matter affect the power of the Legislature to
select from the great body of the public an
individual upon whom it would confer its
favors.
A statute of the state of Minnesota (Laws
1929, c. 424) commanded the Supreme
Court to admit to the practice of law without
examination, all who had served in the
military or naval forces of the United States
during the World War and received a
honorable discharge therefrom and who
(were disabled therein or thereby within the
purview of the Act of Congress approved
June 7th, 1924, known as "World War
Veteran's Act, 1924 and whose disability is
rated at least ten per cent thereunder at the
time of the passage of this Act." This Act
was held |unconstitutional on the ground
that it clearly violated the quality clauses of
the constitution of that state. In re
Application of George W. Humphrey, 178
Minn. 331, 227 N.W. 179.
A good summary of a classification
constitutionally acceptable is explained in
12 Am. Jur. 151-153 as follows:
The general rule is well settled by
unanimity of the authorities that a
classification to be valid must rest upon
material differences between the person
included in it and those excluded and,
furthermore, must be based upon
substantial distinctions. As the rule has
sometimes avoided the constitutional
prohibition, must be founded upon
pertinent and real differences, as
distinguished from irrelevant and artificial
ones. Therefore, any law that is made
applicable to one class of citizens only
must be based on some substantial
difference between the situation of that
class and other individuals to which it does
not apply and must rest on some reason on
which it can be defended. In other words,
there must be such a difference between
the situation and circumstances of all the
members of the class and the situation and
circumstances of all other members of the
state in relation to the subjects of the
discriminatory legislation as presents a just
and natural cause for the difference made
in their liabilities and burdens and in their
rights and privileges. A law is not general
because it operates on all within a clause
unless there is a substantial reason why it
is made to operate on that class only, and
not generally on all. (12 Am. Jur. pp. 151-
153.)
Pursuant to the law in question, those who,
without a grade below 50 per cent in any
subject, have obtained a general average
of 69.5 per cent in the bar examinations in
1946 to 1951, 70.5 per cent in 1952, 71.5
per cent in 1953, and those will obtain 72.5
per cent in 1954, and 73.5 per cent in
1955, will be permitted to take and
subscribe the corresponding oath of office
as members of the Bar, notwithstanding
that the rules require a minimum general
average of 75 per cent, which has been
invariably followed since 1950. Is there any
motive of the nature indicated by the
abovementioned authorities, for this
classification ? If there is none, and none
has been given, then the classification is
fatally defective.
It was indicated that those who failed in
1944, 1941 or the years before, with the
general average indicated, were not
Page | 25
included because the Tribunal has no
record of the unsuccessful candidates of
those years. This fact does not justify the
unexplained classification of unsuccessful
candidates by years, from 1946-1951,
1952, 1953, 1954, 1955. Neither is the
exclusion of those who failed before said
years under the same conditions justified.
The fact that this Court has no record of
examinations prior to 1946 does not signify
that no one concerned may prove by some
other means his right to an equal
consideration.
To defend the disputed law from being
declared unconstitutional on account of its
retroactivity, it is argued that it is curative,
and that in such form it is constitutional.
What does Rep. Act 972 intend to cure ?
Only from 1946 to 1949 were there cases
in which the Tribunal permitted admission
to the bar of candidates who did not obtain
the general average of 75 per cent: in 1946
those who obtained only 72 per cent; in the
1947 and those who had 69 per cent or
more; in 1948, 70 per cent and in 1949, 74
per cent; and in 1950 to 1953, those who
obtained 74 per cent, which was
considered by the Court as equivalent to 75
per cent as prescribed by the Rules, by
reason of circumstances deemed to be
sufficiently justifiable. These changes in the
passing averages during those years were
all that could be objected to or criticized.
Now, it is desired to undo what had been
done — cancel the license that was issued
to those who did not obtain the prescribed
75 per cent ? Certainly not. The disputed
law clearly does not propose to do so.
Concededly, it approves what has been
done by this Tribunal. What Congress
lamented is that the Court did not consider
69.5 per cent obtained by those candidates
who failed in 1946 to 1952 as sufficient to
qualify them to practice law. Hence, it is the
lack of will or defect of judgment of the
Court that is being cured, and to complete
the cure of this infirmity, the effectivity of
the disputed law is being extended up to
the years 1953, 1954 and 1955, increasing
each year the general average by one per
cent, with the order that said candidates be
admitted to the Bar. This purpose, manifest
in the said law, is the best proof that what
the law attempts to amend and correct are
not the rules promulgated, but the will or
judgment of the Court, by means of simply
taking its place. This is doing directly what
the Tribunal should have done during those
years according to the judgment of
Congress. In other words, the power
exercised was not to repeal, alter or
supplement the rules, which continue in
force. What was done was to stop or
suspend them. And this power is not
included in what the Constitution has
granted to Congress, because it falls within
the power to apply the rules. This power
corresponds to the judiciary, to which such
duty been confided.
Article 2 of the law in question permits
partial passing of examinations, at
indefinite intervals. The grave defect of this
system is that it does not take into account
that the laws and jurisprudence are not
stationary, and when a candidate finally
receives his certificate, it may happen that
the existing laws and jurisprudence are
already different, seriously affecting in this
manner his usefulness. The system that
the said law prescribes was used in the first
bar examinations of this country, but was
abandoned for this and other
disadvantages. In this case, however, the
fatal defect is that the article is not
expressed in the title will have temporary
effect only from 1946 to 1955, the text of
article 2 establishes a permanent system
for an indefinite time. This is contrary to
Section 21 (1), article VI of the Constitution,
which vitiates and annuls article 2
completely; and because it is inseparable
from article 1, it is obvious that its nullity
affect the entire law.
Laws are unconstitutional on the following
grounds: first, because they are not within
the legislative powers of Congress to
enact, or Congress has exceeded its
powers; second, because they create or
establish arbitrary methods or forms that
infringe constitutional principles; and third,
because their purposes or effects violate
the Constitution or its basic principles. As
has already been seen, the contested law
suffers from these fatal defects.
Summarizing, we are of the opinion and
hereby declare that Republic Act No. 972 is
unconstitutional and therefore, void, and
Page | 26
without any force nor effect for the following
reasons, to wit:
1. Because its declared purpose is to admit
810 candidates who failed in the bar
examinations of 1946-1952, and who, it
admits, are certainly inadequately prepared
to practice law, as was exactly found by
this Court in the aforesaid years. It decrees
the admission to the Bar of these
candidates, depriving this Tribunal of the
opportunity to determine if they are at
present already prepared to become
members of the Bar. It obliges the Tribunal
to perform something contrary to reason
and in an arbitrary manner. This is a
manifest encroachment on the
constitutional responsibility of the Supreme
Court.
2. Because it is, in effect, a judgment
revoking the resolution of this Court on the
petitions of these 810 candidates, without
having examined their respective
examination papers, and although it is
admitted that this Tribunal may reconsider
said resolution at any time for justifiable
reasons, only this Court and no other may
revise and alter them. In attempting to do it
directly Republic Act No. 972 violated the
Constitution.
3. By the disputed law, Congress has
exceeded its legislative power to repeal,
alter and supplement the rules on
admission to the Bar. Such additional or
amendatory rules are, as they ought to be,
intended to regulate acts subsequent to its
promulgation and should tend to improve
and elevate the practice of law, and this
Tribunal shall consider these rules as
minimum norms towards that end in the
admission, suspension, disbarment and
reinstatement of lawyers to the Bar,
inasmuch as a good bar assists immensely
in the daily performance of judicial
functions and is essential to a worthy
administration of justice. It is therefore the
primary and inherent prerogative of the
Supreme Court to render the ultimate
decision on who may be admitted and may
continue in the practice of law according to
existing rules.
4. The reason advanced for the pretended
classification of candidates, which the law
makes, is contrary to facts which are of
general knowledge and does not justify the
admission to the Bar of law students
inadequately prepared. The pretended
classification is arbitrary. It is undoubtedly a
class legislation.
5. Article 2 of Republic Act No. 972 is not
embraced in the title of the law, contrary to
what the Constitution enjoins, and being
inseparable from the provisions of article 1,
the entire law is void.
6. Lacking in eight votes to declare the
nullity of that part of article 1 referring to the
examinations of 1953 to 1955, said part of
article 1, insofar as it concerns the
examinations in those years, shall continue
in force.
RESOLUTION
Upon mature deliberation by this Court,
after hearing and availing of the
magnificent and impassioned discussion of
the contested law by our Chief Justice at
the opening and close of the debate among
the members of the Court, and after
hearing the judicious observations of two of
our beloved colleagues who since the
beginning have announced their decision
not to take part in voting, we, the eight
members of the Court who subscribed to
this decision have voted and resolved, and
have decided for the Court, and under the
authority of the same:
1. That (a) the portion of article 1 of
Republic Act No. 972 referring to the
examinations of 1946 to 1952, and (b) all of
article 2 of said law are unconstitutional
and, therefore, void and without force and
effect.
2. That, for lack of unanimity in the eight
Justices, that part of article 1 which refers
to the examinations subsequent to the
approval of the law, that is from 1953 to
1955 inclusive, is valid and shall continue
to be in force, in conformity with section 10,
article VII of the Constitution.
Consequently, (1) all the above-mentioned
petitions of the candidates who failed in the
examinations of 1946 to 1952 inclusive are
Page | 27
denied, and (2) all candidates who in the
examinations of 1953 obtained a general
average of 71.5 per cent or more, without
having a grade below 50 per cent in any
subject, are considered as having passed,
whether they have filed petitions for
admission or not. After this decision has
become final, they shall be permitted to
take and subscribe the corresponding oath
of office as members of the Bar on the date
or dates that the chief Justice may set. So
ordered.
Bengzon, Montemayor, Jugo, Labrador,
Pablo, Padilla, and Reyes, JJ., concur.
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner, vs.
CHRISTIAN MONSOD, HON. JOVITO R.
SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO
CARAGUE, in his capacity as Secretary
of Budget and Management,
respondents.
PARAS, J.:
We are faced here with a controversy of
far-reaching proportions. While ostensibly
only legal issues are involved, the Court's
decision in this case would indubitably
have a profound effect on the political
aspect of our national existence.
The 1987 Constitution provides in Section
1 (1), Article IX-C:
There shall be a Commission on Elections
composed of a Chairman and six
Commissioners who shall be natural-born
citizens of the Philippines and, at the time
of their appointment, at least thirty-five
years of age, holders of a college degree,
and must not have been candidates for any
elective position in the immediately
preceding -elections. However, a majority
thereof, including the Chairman, shall be
members of the Philippine Bar who have
been engaged in the practice of law for at
least ten years. (Emphasis supplied)
The aforequoted provision is patterned
after Section l(l), Article XII-C of the 1973
Constitution which similarly provides:
There shall be an independent Commission
on Elections composed of a Chairman and
eight Commissioners who shall be natural-
born citizens of the Philippines and, at the
time of their appointment, at least thirty-five
years of age and holders of a college
degree. However, a majority thereof,
including the Chairman, shall be members
of the Philippine Bar who have been
engaged in the practice of law for at least
ten years.' (Emphasis supplied)
Regrettably, however, there seems to be
no jurisprudence as to what constitutes
practice of law as a legal qualification to an
appointive office.
Black defines "practice of law" as:
The rendition of services requiring the
knowledge and the application of legal
principles and technique to serve the
interest of another with his consent. It is not
limited to appearing in court, or advising
and assisting in the conduct of litigation,
but embraces the preparation of pleadings,
and other papers incident to actions and
special proceedings, conveyancing, the
preparation of legal instruments of all kinds,
and the giving of all legal advice to clients.
It embraces all advice to clients and all
actions taken for them in matters
connected with the law. An attorney
engages in the practice of law by
maintaining an office where he is held out
to be-an attorney, using a letterhead
describing himself as an attorney,
counseling clients in legal matters,
negotiating with opposing counsel about
pending litigation, and fixing and collecting
fees for services rendered by his associate.
(Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the
conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129
Ohio St. 23, 193 N.E. 650) A person is also
considered to be in the practice of law
when he:
... for valuable consideration engages in
the business of advising person, firms,
associations or corporations as to their
rights under the law, or appears in a
representative capacity as an advocate in
proceedings pending or prospective, before
Page | 28
any court, commissioner, referee, board,
body, committee, or commission
constituted by law or authorized to settle
controversies and there, in such
representative capacity performs any act or
acts for the purpose of obtaining or
defending the rights of their clients under
the law. Otherwise stated, one who, in a
representative capacity, engages in the
business of advising clients as to their
rights under the law, or while so engaged
performs any act or acts either in court or
outside of court for that purpose, is
engaged in the practice of law. (State ex.
rel. Mckittrick v..C.S. Dudley and Co., 102
S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine
Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the
conduct of cases or litigation in court; it
embraces the preparation of pleadings and
other papers incident to actions and special
proceedings, the management of such
actions and proceedings on behalf of
clients before judges and courts, and in
addition, conveying. In general, all advice
to clients, and all action taken for them in
matters connected with the law
incorporation services, assessment and
condemnation services contemplating an
appearance before a judicial body, the
foreclosure of a mortgage, enforcement of
a creditor's claim in bankruptcy and
insolvency proceedings, and conducting
proceedings in attachment, and in matters
of estate and guardianship have been held
to constitute law practice, as do the
preparation and drafting of legal
instruments, where the work done involves
the determination by the trained legal mind
of the legal effect of facts and conditions. (5
Am. Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions
consists in no small part of work performed
outside of any court and having no
immediate relation to proceedings in court.
It embraces conveyancing, the giving of
legal advice on a large variety of subjects,
and the preparation and execution of legal
instruments covering an extensive field of
business and trust relations and other
affairs. Although these transactions may
have no direct connection with court
proceedings, they are always subject to
become involved in litigation. They require
in many aspects a high degree of legal
skill, a wide experience with men and
affairs, and great capacity for adaptation to
difficult and complex situations. These
customary functions of an attorney or
counselor at law bear an intimate relation
to the administration of justice by the
courts. No valid distinction, so far as
concerns the question set forth in the order,
can be drawn between that part of the work
of the lawyer which involves appearance in
court and that part which involves advice
and drafting of instruments in his office. It is
of importance to the welfare of the public
that these manifold customary functions be
performed by persons possessed of
adequate learning and skill, of sound moral
character, and acting at all times under the
heavy trust obligations to clients which
rests upon all attorneys. (Moran,
Comments on the Rules of Court, Vol. 3
[1953 ed.] , p. 665-666, citing In re Opinion
of the Justices [Mass.], 194 N.E. 313,
quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A.
139,144). (Emphasis ours)
The University of the Philippines Law
Center in conducting orientation briefing for
new lawyers (1974-1975) listed the
dimensions of the practice of law in even
broader terms as advocacy, counselling
and public service.
One may be a practicing attorney in
following any line of employment in the
profession. If what he does exacts
knowledge of the law and is of a kind usual
for attorneys engaging in the active
practice of their profession, and he follows
some one or more lines of employment
such as this he is a practicing attorney at
law within the meaning of the statute. (Barr
v. Cardell, 155 NW 312)
Practice of law means any activity, in or out
of court, which requires the application of
law, legal procedure, knowledge, training
and experience. "To engage in the practice
of law is to perform those acts which are
characteristics of the profession. Generally,
to practice law is to give notice or render
Page | 29
any kind of service, which device or service
requires the use in any degree of legal
knowledge or skill." (111 ALR 23)
The following records of the 1986
Constitutional Commission show that it has
adopted a liberal interpretation of the term
"practice of law."
MR. FOZ. Before we suspend the session,
may I make a manifestation which I forgot
to do during our review of the provisions on
the Commission on Audit. May I be allowed
to make a very brief statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the
qualifications of the members of the
Commission on Audit. Among others, the
qualifications provided for by Section I is
that "They must be Members of the
Philippine Bar" — I am quoting from the
provision — "who have been engaged in
the practice of law for at least ten years".
To avoid any misunderstanding which
would result in excluding members of the
Bar who are now employed in the COA or
Commission on Audit, we would like to
make the clarification that this provision on
qualifications regarding members of the
Bar does not necessarily refer or involve
actual practice of law outside the COA We
have to interpret this to mean that as long
as the lawyers who are employed in the
COA are using their legal knowledge or
legal talent in their respective work within
COA, then they are qualified to be
considered for appointment as members or
commissioners, even chairman, of the
Commission on Audit.
This has been discussed by the Committee
on Constitutional Commissions and
Agencies and we deem it important to take
it up on the floor so that this interpretation
may be made available whenever this
provision on the qualifications as regards
members of the Philippine Bar engaging in
the practice of law for at least ten years is
taken up.
MR. OPLE. Will Commissioner Foz yield to
just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that
service in the COA by a lawyer is
equivalent to the requirement of a law
practice that is set forth in the Article on the
Commission on Audit?
MR. FOZ. We must consider the fact that
the work of COA, although it is auditing, will
necessarily involve legal work; it will involve
legal work. And, therefore, lawyers who are
employed in COA now would have the
necessary qualifications in accordance with
the Provision on qualifications under our
provisions on the Commission on Audit.
And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction
given to this is that this is equivalent to the
practice of law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987
Constitution, provides, among others, that
the Chairman and two Commissioners of
the Commission on Audit (COA) should
either be certified public accountants with
not less than ten years of auditing practice,
or members of the Philippine Bar who have
been engaged in the practice of law for at
least ten years. (emphasis supplied)
Corollary to this is the term "private
practitioner" and which is in many ways
synonymous with the word "lawyer." Today,
although many lawyers do not engage in
private practice, it is still a fact that the
majority of lawyers are private practitioners.
(Gary Munneke, Opportunities in Law
Careers [VGM Career Horizons: Illinois],
[1986], p. 15).
At this point, it might be helpful to define
private practice. The term, as commonly
understood, means "an individual or
organization engaged in the business of
Page | 30
delivering legal services." (Ibid.). Lawyers
who practice alone are often called "sole
practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership
and members of the firm are the partners.
Some firms may be organized as
professional corporations and the members
called shareholders. In either case, the
members of the firm are the experienced
attorneys. In most firms, there are younger
or more inexperienced salaried
attorneyscalled "associates." (Ibid.).
The test that defines law practice by
looking to traditional areas of law practice
is essentially tautologous, unhelpful
defining the practice of law as that which
lawyers do. (Charles W. Wolfram, Modern
Legal Ethics [West Publishing Co.:
Minnesota, 1986], p. 593). The practice of
law is defined as the performance of any
acts . . . in or out of court, commonly
understood to be the practice of law. (State
Bar Ass'n v. Connecticut Bank & Trust Co.,
145 Conn. 222, 140 A.2d 863, 870 [1958]
[quoting Grievance Comm. v. Payne, 128
Conn. 325, 22 A.2d 623, 626 [1941]).
Because lawyers perform almost every
function known in the commercial and
governmental realm, such a definition
would obviously be too global to be
workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in
behalf of a client is at once the most
publicly familiar role for lawyers as well as
an uncommon role for the average lawyer.
Most lawyers spend little time in
courtrooms, and a large percentage spend
their entire practice without litigating a
case. (Ibid., p. 593). Nonetheless, many
lawyers do continue to litigate and the
litigating lawyer's role colors much of both
the public image and the self perception of
the legal profession. (Ibid.).
In this regard thus, the dominance of
litigation in the public mind reflects history,
not reality. (Ibid.). Why is this so? Recall
that the late Alexander SyCip, a corporate
lawyer, once articulated on the importance
of a lawyer as a business counselor in this
wise: "Even today, there are still
uninformed laymen whose concept of an
attorney is one who principally tries cases
before the courts. The members of the
bench and bar and the informed laymen
such as businessmen, know that in most
developed societies today, substantially
more legal work is transacted in law offices
than in the courtrooms. General
practitioners of law who do both litigation
and non-litigation work also know that in
most cases they find themselves spending
more time doing what [is] loosely
desccribe[d] as business counseling than in
trying cases. The business lawyer has
been described as the planner, the
diagnostician and the trial lawyer, the
surgeon. I[t] need not [be] stress[ed] that in
law, as in medicine, surgery should be
avoided where internal medicine can be
effective." (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average
general practitioner wig engage in a
number of legal tasks, each involving
different legal doctrines, legal skills, legal
processes, legal institutions, clients, and
other interested parties. Even the
increasing numbers of lawyers in
specialized practice wig usually perform at
least some legal services outside their
specialty. And even within a narrow
specialty such as tax practice, a lawyer will
shift from one legal task or role such as
advice-giving to an importantly different
one such as representing a client before an
administrative agency. (Wolfram, supra, p.
687).
By no means will most of this work involve
litigation, unless the lawyer is one of the
relatively rare types — a litigator who
specializes in this work to the exclusion of
much else. Instead, the work will require
the lawyer to have mastered the full range
of traditional lawyer skills of client
counselling, advice-giving, document
drafting, and negotiation. And increasingly
lawyers find that the new skills of
evaluation and mediation are both effective
for many clients and a source of
employment. (Ibid.).
Most lawyers will engage in non-litigation
legal work or in litigation work that is
constrained in very important ways, at least
theoretically, so as to remove from it some
of the salient features of adversarial
Page | 31
litigation. Of these special roles, the most
prominent is that of prosecutor. In some
lawyers' work the constraints are imposed
both by the nature of the client and by the
way in which the lawyer is organized into a
social unit to perform that work. The most
common of these roles are those of
corporate practice and government legal
service. (Ibid.).
In several issues of the Business Star, a
business daily, herein below quoted are
emerging trends in corporate law practice,
a departure from the traditional concept of
practice of law.
We are experiencing today what truly may
be called a revolutionary transformation in
corporate law practice. Lawyers and other
professional groups, in particular those
members participating in various legal-
policy decisional contexts, are finding that
understanding the major emerging trends
in corporation law is indispensable to
intelligent decision-making.
Constructive adjustment to major corporate
problems of today requires an accurate
understanding of the nature and
implications of the corporate law research
function accompanied by an accelerating
rate of information accumulation. The
recognition of the need for such improved
corporate legal policy formulation,
particularly "model-making" and
"contingency planning," has impressed
upon us the inadequacy of traditional
procedures in many decisional contexts.
In a complex legal problem the mass of
information to be processed, the sorting
and weighing of significant conditional
factors, the appraisal of major trends, the
necessity of estimating the consequences
of given courses of action, and the need for
fast decision and response in situations of
acute danger have prompted the use of
sophisticated concepts of information flow
theory, operational analysis, automatic data
processing, and electronic computing
equipment. Understandably, an improved
decisional structure must stress the
predictive component of the policy-making
process, wherein a "model", of the
decisional context or a segment thereof is
developed to test projected alternative
courses of action in terms of futuristic
effects flowing therefrom.
Although members of the legal profession
are regularly engaged in predicting and
projecting the trends of the law, the subject
of corporate finance law has received
relatively little organized and formalized
attention in the philosophy of advancing
corporate legal education. Nonetheless, a
cross-disciplinary approach to legal
research has become a vital necessity.
Certainly, the general orientation for
productive contributions by those trained
primarily in the law can be improved
through an early introduction to multi-
variable decisional context and the various
approaches for handling such problems.
Lawyers, particularly with either a master's
or doctorate degree in business
administration or management, functioning
at the legal policy level of decision-making
now have some appreciation for the
concepts and analytical techniques of other
professions which are currently engaged in
similar types of complex decision-making.
Truth to tell, many situations involving
corporate finance problems would require
the services of an astute attorney because
of the complex legal implications that arise
from each and every necessary step in
securing and maintaining the business
issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate
lawyer is assiduously referred to as the
"abogado de campanilla." He is the "big-
time" lawyer, earning big money and with a
clientele composed of the tycoons and
magnates of business and industry.
Despite the growing number of corporate
lawyers, many people could not explain
what it is that a corporate lawyer does. For
one, the number of attorneys employed by
a single corporation will vary with the size
and type of the corporation. Many smaller
and some large corporations farm out all
their legal problems to private law firms.
Many others have in-house counsel only
for certain matters. Other corporation have
Page | 32
a staff large enough to handle most legal
problems in-house.
A corporate lawyer, for all intents and
purposes, is a lawyer who handles the
legal affairs of a corporation. His areas of
concern or jurisdiction may include, inter
alia: corporate legal research, tax laws
research, acting out as corporate secretary
(in board meetings), appearances in both
courts and other adjudicatory agencies
(including the Securities and Exchange
Commission), and in other capacities which
require an ability to deal with the law.
At any rate, a corporate lawyer may
assume responsibilities other than the legal
affairs of the business of the corporation he
is representing. These include such
matters as determining policy and
becoming involved in management.
( Emphasis supplied.)
In a big company, for example, one may
have a feeling of being isolated from the
action, or not understanding how one's
work actually fits into the work of the
orgarnization. This can be frustrating to
someone who needs to see the results of
his work first hand. In short, a corporate
lawyer is sometimes offered this fortune to
be more closely involved in the running of
the business.
Moreover, a corporate lawyer's services
may sometimes be engaged by a
multinational corporation (MNC). Some
large MNCs provide one of the few
opportunities available to corporate lawyers
to enter the international law field. After all,
international law is practiced in a relatively
small number of companies and law firms.
Because working in a foreign country is
perceived by many as glamorous, tills is an
area coveted by corporate lawyers. In most
cases, however, the overseas jobs go to
experienced attorneys while the younger
attorneys do their "international practice" in
law libraries. (Business Star, "Corporate
Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role
of the lawyer in the realm of finance. To
borrow the lines of Harvard-educated
lawyer Bruce Wassertein, to wit: "A bad
lawyer is one who fails to spot problems, a
good lawyer is one who perceives the
difficulties, and the excellent lawyer is one
who surmounts them." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p.
4).
Today, the study of corporate law practice
direly needs a "shot in the arm," so to
speak. No longer are we talking of the
traditional law teaching method of confining
the subject study to the Corporation Code
and the Securities Code but an incursion
as well into the intertwining modern
management issues.
Such corporate legal management issues
deal primarily with three (3) types of
learning: (1) acquisition of insights into
current advances which are of particular
significance to the corporate counsel; (2)
an introduction to usable disciplinary skins
applicable to a corporate counsel's
management responsibilities; and (3) a
devotion to the organization and
management of the legal function itself.
These three subject areas may be thought
of as intersecting circles, with a shared
area linking them. Otherwise known as
"intersecting managerial jurisprudence," it
forms a unifying theme for the corporate
counsel's total learning.
Some current advances in behavior and
policy sciences affect the counsel's role.
For that matter, the corporate lawyer
reviews the globalization process, including
the resulting strategic repositioning that the
firms he provides counsel for are required
to make, and the need to think about a
corporation's; strategy at multiple levels.
The salience of the nation-state is being
reduced as firms deal both with global
multinational entities and simultaneously
with sub-national governmental units. Firms
increasingly collaborate not only with public
entities but with each other — often with
those who are competitors in other arenas.
Also, the nature of the lawyer's
participation in decision-making within the
corporation is rapidly changing. The
modem corporate lawyer has gained a new
role as a stakeholder — in some cases
participating in the organization and
operations of governance through
Page | 33
participation on boards and other decision-
making roles. Often these new patterns
develop alongside existing legal institutions
and laws are perceived as barriers. These
trends are complicated as corporations
organize for global operations. ( Emphasis
supplied)
The practising lawyer of today is familiar as
well with governmental policies toward the
promotion and management of technology.
New collaborative arrangements for
promoting specific technologies or
competitiveness more generally require
approaches from industry that differ from
older, more adversarial relationships and
traditional forms of seeking to influence
governmental policies. And there are
lessons to be learned from other countries.
In Europe, Esprit, Eureka and Race are
examples of collaborative efforts between
governmental and business Japan's MITI is
world famous. (Emphasis supplied)
Following the concept of boundary
spanning, the office of the Corporate
Counsel comprises a distinct group within
the managerial structure of all kinds of
organizations. Effectiveness of both long-
term and temporary groups within
organizations has been found to be related
to indentifiable factors in the group-context
interaction such as the groups actively
revising their knowledge of the environment
coordinating work with outsiders, promoting
team achievements within the organization.
In general, such external activities are
better predictors of team performance than
internal group processes.
In a crisis situation, the legal managerial
capabilities of the corporate lawyer vis-a-
vis the managerial mettle of corporations
are challenged. Current research is
seeking ways both to anticipate effective
managerial procedures and to understand
relationships of financial liability and
insurance considerations. (Emphasis
supplied)
Regarding the skills to apply by the
corporate counsel, three factors are
apropos:
First System Dynamics. The field of
systems dynamics has been found an
effective tool for new managerial thinking
regarding both planning and pressing
immediate problems. An understanding of
the role of feedback loops, inventory levels,
and rates of flow, enable users to simulate
all sorts of systematic problems —
physical, economic, managerial, social, and
psychological. New programming
techniques now make the system dynamics
principles more accessible to managers —
including corporate counsels. (Emphasis
supplied)
Second Decision Analysis. This enables
users to make better decisions involving
complexity and uncertainty. In the context
of a law department, it can be used to
appraise the settlement value of litigation,
aid in negotiation settlement, and minimize
the cost and risk involved in managing a
portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation
Management. Computer-based models can
be used directly by parties and mediators in
all lands of negotiations. All integrated set
of such tools provide coherent and effective
negotiation support, including hands-on on
instruction in these techniques. A
simulation case of an international joint
venture may be used to illustrate the point.
[Be this as it may,] the organization and
management of the legal function, concern
three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers
requires special skills that comprise a
major part of the general counsel's
responsibilities. They differ from those of
remedial law. Preventive lawyering is
concerned with minimizing the risks of legal
trouble and maximizing legal rights for such
legal entities at that time when
transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the
framework within which are undertaken
those activities of the firm to which legal
consequences attach. It needs to be
directly supportive of this nation's evolving
economic and organizational fabric as firms
change to stay competitive in a global,
interdependent environment. The practice
Page | 34
and theory of "law" is not adequate today to
facilitate the relationships needed in trying
to make a global economy work.
Organization and Functioning of the
Corporate Counsel's Office. The general
counsel has emerged in the last decade as
one of the most vibrant subsets of the legal
profession. The corporate counsel hear
responsibility for key aspects of the firm's
strategic issues, including structuring its
global operations, managing improved
relationships with an increasingly
diversified body of employees, managing
expanded liability exposure, creating new
and varied interactions with public decision-
makers, coping internally with more
complex make or by decisions.
This whole exercise drives home the thesis
that knowing corporate law is not enough to
make one a good general corporate
counsel nor to give him a full sense of how
the legal system shapes corporate
activities. And even if the corporate
lawyer's aim is not the understand all of the
law's effects on corporate activities, he
must, at the very least, also gain a working
knowledge of the management issues if
only to be able to grasp not only the basic
legal "constitution' or makeup of the
modem corporation. "Business Star", "The
Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar
and the bench) is to have more than a
passing knowledge of financial law
affecting each aspect of their work. Yet,
many would admit to ignorance of vast
tracts of the financial law territory. What
transpires next is a dilemma of professional
security: Will the lawyer admit ignorance
and risk opprobrium?; or will he feign
understanding and risk exposure?
(Business Star, "Corporate Finance law,"
Jan. 11, 1989, p. 4).
Respondent Christian Monsod was
nominated by President Corazon C. Aquino
to the position of Chairman of the
COMELEC in a letter received by the
Secretariat of the Commission on
Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly
Monsod does not possess the required
qualification of having been engaged in the
practice of law for at least ten years.
On June 5, 1991, the Commission on
Appointments confirmed the nomination of
Monsod as Chairman of the COMELEC.
On June 18, 1991, he took his oath of
office. On the same day, he assumed office
as Chairman of the COMELEC.
Challenging the validity of the confirmation
by the Commission on Appointments of
Monsod's nomination, petitioner as a
citizen and taxpayer, filed the instant
petition for certiorari and Prohibition
praying that said confirmation and the
consequent appointment of Monsod as
Chairman of the Commission on Elections
be declared null and void.
Atty. Christian Monsod is a member of the
Philippine Bar, having passed the bar
examinations of 1960 with a grade of 86-
55%. He has been a dues paying member
of the Integrated Bar of the Philippines
since its inception in 1972-73. He has also
been paying his professional license fees
as lawyer for more than ten years. (p. 124,
Rollo)
After graduating from the College of Law
(U.P.) and having hurdled the bar, Atty.
Monsod worked in the law office of his
father. During his stint in the World Bank
Group (1963-1970), Monsod worked as an
operations officer for about two years in
Costa Rica and Panama, which involved
getting acquainted with the laws of
member-countries negotiating loans and
coordinating legal, economic, and project
work of the Bank. Upon returning to the
Philippines in 1970, he worked with the
Meralco Group, served as chief executive
officer of an investment bank and
subsequently of a business conglomerate,
and since 1986, has rendered services to
various companies as a legal and
economic consultant or chief executive
officer. As former Secretary-General (1986)
and National Chairman (1987) of
NAMFREL. Monsod's work involved being
knowledgeable in election law. He
appeared for NAMFREL in its accreditation
hearings before the Comelec. In the field of
advocacy, Monsod, in his personal capacity
and as former Co-Chairman of the Bishops
Page | 35
Businessmen's Conference for Human
Development, has worked with the under
privileged sectors, such as the farmer and
urban poor groups, in initiating, lobbying for
and engaging in affirmative action for the
agrarian reform law and lately the urban
land reform bill. Monsod also made use of
his legal knowledge as a member of the
Davide Commission, a quast judicial body,
which conducted numerous hearings
(1990) and as a member of the
Constitutional Commission (1986-1987),
and Chairman of its Committee on
Accountability of Public Officers, for which
he was cited by the President of the
Commission, Justice Cecilia Muñoz-Palma
for "innumerable amendments to reconcile
government functions with individual
freedoms and public accountability and the
party-list system for the House of
Representative. (pp. 128-129 Rollo)
( Emphasis supplied)
Just a word about the work of a negotiating
team of which Atty. Monsod used to be a
member.
In a loan agreement, for instance, a
negotiating panel acts as a team, and
which is adequately constituted to meet the
various contingencies that arise during a
negotiation. Besides top officials of the
Borrower concerned, there are the legal
officer (such as the legal counsel), the
finance manager, and an operations officer
(such as an official involved in negotiating
the contracts) who comprise the members
of the team. (Guillermo V. Soliven, "Loan
Negotiating Strategies for Developing
Country Borrowers," Staff Paper No. 2,
Central Bank of the Philippines, Manila,
1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a
country's Constitution; it lays down the law
as far as the loan transaction is concerned.
Thus, the meat of any Loan Agreement can
be compartmentalized into five (5)
fundamental parts: (1) business terms; (2)
borrower's representation; (3) conditions of
closing; (4) covenants; and (5) events of
default. (Ibid., p. 13).
In the same vein, lawyers play an important
role in any debt restructuring program. For
aside from performing the tasks of
legislative drafting and legal advising, they
score national development policies as key
factors in maintaining their countries'
sovereignty. (Condensed from the work
paper, entitled "Wanted: Development
Lawyers for Developing Nations,"
submitted by L. Michael Hager, regional
legal adviser of the United States Agency
for International Development, during the
Session on Law for the Development of
Nations at the Abidjan World Conference in
Ivory Coast, sponsored by the World Peace
Through Law Center on August 26-31,
1973). ( Emphasis supplied)
Loan concessions and compromises,
perhaps even more so than purely
renegotiation policies, demand expertise in
the law of contracts, in legislation and
agreement drafting and in renegotiation.
Necessarily, a sovereign lawyer may work
with an international business specialist or
an economist in the formulation of a model
loan agreement. Debt restructuring contract
agreements contain such a mixture of
technical language that they should be
carefully drafted and signed only with the
advise of competent counsel in conjunction
with the guidance of adequate technical
support personnel. (See International Law
Aspects of the Philippine External Debts,
an unpublished dissertation, U.S.T.
Graduate School of Law, 1987, p. 321).
( Emphasis supplied)
A critical aspect of sovereign debt
restructuring/contract construction is the
set of terms and conditions which
determines the contractual remedies for a
failure to perform one or more elements of
the contract. A good agreement must not
only define the responsibilities of both
parties, but must also state the recourse
open to either party when the other fails to
discharge an obligation. For a compleat
debt restructuring represents a devotion to
that principle which in the ultimate analysis
is sine qua non for foreign loan
agreements-an adherence to the rule of
law in domestic and international affairs of
whose kind U.S. Supreme Court Justice
Oliver Wendell Holmes, Jr. once said:
"They carry no banners, they beat no
drums; but where they are, men learn that
bustle and bush are not the equal of quiet
Page | 36
genius and serene mastery." (See Ricardo
J. Romulo, "The Role of Lawyers in
Foreign Investments," Integrated Bar of the
Philippine Journal, Vol. 15, Nos. 3 and 4,
Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various
definitions of the term Practice of law".
particularly the modern concept of law
practice, and taking into consideration the
liberal construction intended by the framers
of the Constitution, Atty. Monsod's past
work experiences as a lawyer-economist, a
lawyer-manager, a lawyer-entrepreneur of
industry, a lawyer-negotiator of contracts,
and a lawyer-legislator of both the rich and
the poor — verily more than satisfy the
constitutional requirement — that he has
been engaged in the practice of law for at
least ten years.
Besides in the leading case of Luego v.
Civil Service Commission, 143 SCRA 327,
the Court said:
Appointment is an essentially discretionary
power and must be performed by the
officer in which it is vested according to his
best lights, the only condition being that the
appointee should possess the qualifications
required by law. If he does, then the
appointment cannot be faulted on the
ground that there are others better qualified
who should have been preferred. This is a
political question involving considerations
of wisdom which only the appointing
authority can decide. (emphasis supplied)
No less emphatic was the Court in the case
of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it
stated:
It is well-settled that when the appointee is
qualified, as in this case, and all the other
legal requirements are satisfied, the
Commission has no alternative but to attest
to the appointment in accordance with the
Civil Service Law. The Commission has no
authority to revoke an appointment on the
ground that another person is more
qualified for a particular position. It also has
no authority to direct the appointment of a
substitute of its choice. To do so would be
an encroachment on the discretion vested
upon the appointing authority. An
appointment is essentially within the
discretionary power of whomsoever it is
vested, subject to the only condition that
the appointee should possess the
qualifications required by law. ( Emphasis
supplied)
The appointing process in a regular
appointment as in the case at bar, consists
of four (4) stages: (1) nomination; (2)
confirmation by the Commission on
Appointments; (3) issuance of a distinguished from the modern concept of
commission (in the Philippines, upon
submission by the Commission on
Appointments of its certificate of
confirmation, the President issues the
permanent appointment; and (4)
acceptance e.g., oath-taking, posting of
bond, etc. . . . (Lacson v. Romero, No. L-
3081, October 14, 1949; Gonzales, Law on
Public Officers, p. 200)
The power of the Commission on
Appointments to give its consent to the
nomination of Monsod as Chairman of the
Commission on Elections is mandated by
Section 1(2) Sub-Article C, Article IX of the
Constitution which provides:
The Chairman and the Commisioners shall
be appointed by the President with the
consent of the Commission on
Appointments for a term of seven years
without reappointment. Of those first
appointed, three Members shall hold office
for seven years, two Members for five
years, and the last Members for three
years, without reappointment. Appointment
to any vacancy shall be only for the
unexpired term of the predecessor. In no
case shall any Member be appointed or
designated in a temporary or acting
capacity.
Anent Justice Teodoro Padilla's separate
opinion, suffice it to say that his definition of
the practice of law is the traditional or
stereotyped notion of law practice, as
the practice of law, which modern
connotation is exactly what was intended
by the eminent framers of the 1987
Constitution. Moreover, Justice Padilla's
definition would require generally a habitual
law practice, perhaps practised two or
Page | 37
three times a week and would outlaw say,
law practice once or twice a year for ten
consecutive years. Clearly, this is far from
the constitutional intent.
Upon the other hand, the separate opinion
of Justice Isagani Cruz states that in my
written opinion, I made use of a definition of
law practice which really means nothing
because the definition says that law
practice " . . . is what people ordinarily
mean by the practice of law." True I cited
the definition but only by way of sarcasm
as evident from my statement that the
definition of law practice by "traditional
areas of law practice is essentially
tautologous" or defining a phrase by means
of the phrase itself that is being defined.
Justice Cruz goes on to say in substance
that since the law covers almost all
situations, most individuals, in making use
of the law, or in advising others on what the
law means, are actually practicing law. In
that sense, perhaps, but we should not lose
sight of the fact that Mr. Monsod is a
lawyer, a member of the Philippine Bar,
who has been practising law for over ten
years. This is different from the acts of
persons practising law, without first
becoming lawyers.
Justice Cruz also says that the Supreme
Court can even disqualify an elected
President of the Philippines, say, on the
ground that he lacks one or more
qualifications. This matter, I greatly doubt.
For one thing, how can an action or petition
be brought against the President? And
even assuming that he is indeed
disqualified, how can the action be
entertained since he is the incumbent
President?
We now proceed:
The Commission on the basis of evidence
submitted doling the public hearings on
Monsod's confirmation, implicitly
determined that he possessed the
necessary qualifications as required by law.
The judgment rendered by the Commission
in the exercise of such an acknowledged
power is beyond judicial interference
except only upon a clear showing of a
grave abuse of discretion amounting to lack
or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave
abuse of discretion is clearly shown shall
the Court interfere with the Commission's
judgment. In the instant case, there is no
occasion for the exercise of the Court's
corrective power, since no abuse, much
less a grave abuse of discretion, that would
amount to lack or excess of jurisdiction and
would warrant the issuance of the writs
prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments
rejects a nominee by the President, may
the Supreme Court reverse the
Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the
negative.
(2) In the same vein, may the Court
reject the nominee, whom the Commission
has confirmed? The answer is likewise
clear.
(3) If the United States Senate (which
is the confirming body in the U.S.
Congress) decides to confirm a
Presidential nominee, it would be incredible
that the U.S. Supreme Court would still
reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that
killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and
Delilah. Once, the procurator of Judea
asked Delilah (who was Samson's beloved)
for help in capturing Samson. Delilah
agreed on condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah)
was captured, the procurator placed an iron
rod burning white-hot two or three inches
away from in front of Samson's eyes. This
blinded the man. Upon hearing of what had
happened to her beloved, Delilah was
beside herself with anger, and fuming with
righteous fury, accused the procurator of
Page | 38
reneging on his word. The procurator
calmly replied: "Did any blade touch his
skin? Did any blood flow from his veins?"
The procurator was clearly relying on the
letter, not the spirit of the agreement.

In view of the foregoing, this petition is

hereby DISMISSED. SO ORDERED.

Fernan, C.J., Griño-Aquino and Medialdea,

JJ., concur. Feliciano, J., I certify that he
voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.

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